Opinion; Subjects: RWANDA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.24-09680 (E) 250624 260624
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-ninth session, 18–27 March 2024
Opinion No. 25/2024 concerning Hamad Hagenimana, Emmanuel
Masengesho, Alphonse Mutabazi, Marcel Nahimana, Jean Claude
Ndayishimiye, Theoneste Nsengimana, Alexis Rucubanganya,
Sylvain Sibomana and Claudine Uwimana (Rwanda)*
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 51/8.
2.
In accordance with its methods of work,1 on 13 November 2023 the Working Group
transmitted to the Government of Rwanda a communication concerning Hamad Hagenimana,
Emmanuel Masengesho, Alphonse Mutabazi, Marcel Nahimana, Jean Claude Ndayishimiye,
Theoneste Nsengimana, Alexis Rucubanganya, Sylvain Sibomana and Claudine Uwimana.
The Government replied to the communication on 9 February 2024. The State is a party to
the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
* Miriam Estrada Castillo did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/25
General Assembly
Distr.: General
26 June 2024
Original: English
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(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination, based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1.
Submissions
(a)
Communication from the source
4.
Hamad Hagenimana, a Rwandan citizen born 1 on January 1982, is a security guard
and belongs to the Development and Liberty for All Party (hereinafter referred to as the
DALFA-Umurinzi Party). He usually resides in Byimana, Kigali.
5.
Emmanuel Masengesho, a Rwandan citizen born on 12 December 1988, works at the
SOSEREGI company and belongs to the DALFA-Umurinzi Party. He usually resides in
Shusho, Western Province.
6.
Alphonse Mutabazi, a Rwandan citizen born on 10 May 1992, works at the
SOSEREGI company and is the representative of the DALFA-Umurinzi Party in Western
Province. He usually resides in Remera, Western Province.
7.
Marcel Nahimana, a Rwandan citizen born on 2 April 1987, is a teacher and temporary
Secretary General of DALFA-Umurinzi Party. He usually resides in Hanika, Western
Province.
8.
Jean Claude Ndayishimiye, a Rwandan citizen born on 1 January 1985, is a trader and
belongs to the DALFA-Umurinzi Party. He usually resides in Kabeza, Southern Province.
9.
Theoneste Nsengimana, a Rwandan citizen born on 1 January 1987, is a journalist and
runs an online television and social media channel which broadcasts discussions critical of
the Government of Rwanda. He usually resides in Nyirabwana, Kigali City.
10.
Alexis Rucubanganya, a Rwandan citizen born on 17 July 1974, is a teacher and a
member of the DALFA-Umurinzi Party. He usually resides in Rubimba, Eastern Province.
11.
Sylvain Sibomana, a Rwandan citizen born on 1 January 1970, is the national
coordinator of the DALFA-Umurinzi Party. He was also the Secretary-General of the United
Democratic Forces of Rwanda (FDU-Inkingi), an opposition party. He usually resides in
Mataba Cell, Kigali.
12.
Claudine Uwimana, a Rwandan citizen born on 15 February 1990, is a teacher and
belongs to the DALFA-Umurinzi Party. She usually resides in Bweramana, Western
Province.
(i)
Context
13.
The Rwandan Patriotic Front has ruled Rwanda since 1994, and since 2000, a pattern
of targeting any form of opposition and dissent has emerged, with the authorities
intimidating, detaining and prosecuting opposition candidates.
14.
Reportedly, constitutional amendments in 2015 extended the President’s eligibility
for office until 2034, and the Rwandan Patriotic Front dominated the legislative process. The
Rwandan Patriotic Front controls the electoral process and has denied the registration of
opposition and political parties. Establishing a political party in Rwanda has been described
as long, laborious and arbitrary. Registration of the DALFA-Umurinzi Party has been denied,
and members were convicted for offences against the Government in 2020.
15.
The authorities have prosecuted political opponents and journalists, under broadly
defined crimes enabling arbitrary interpretation, such as “negations of the genocide”,
“divisionism” and “spreading rumours”.2 Moreover, assemblies in public places and political
demonstrations require prior authorization under the law, under which authorities can deny
2 See https://www.ohchr.org/en/statements/2014/01/statement-united-nations-special-rapporteur-rights-
freedom-peaceful-assembly-and.
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authorizations on broad grounds,3 making public demonstrations and protests rare and subject
to police repression.
(ii)
Arrest and detention
16.
In August 2021, Mr. Sibomana invited the members of the DALFA-Umurinzi Party
to an online training session on non-violent resistance for human rights and democracy,
organized by the Centre for Applied Non-Violent Action and Strategies. He invited them to
an instant communication group, and shared training materials. Mr. Sibomana sent money to
members for Internet bundles and advised them to download an encrypted application and
use pseudonyms during the training.
17.
The training sessions were held on 13, 16, 20 and 24 September 2021, and involved
discussions and presentations on tactics to combat the mistreatment, social injustice, lack of
consultation in decision-making, excessive land taxes and detentions in Rwanda.
Messrs. Hagenimana, Masengesho, Nahimana, Ndayishimiye, Rucubanganya and Sibomana
and Ms. Uwimana took part in the training sessions, while Messrs. Nsengimana and Mutabazi
did not.
18.
These sessions occurred ahead of Ingabire Day, scheduled for 14 October 2021 to
commemorate political prisoners on the day an individual was arrested 11 years earlier.
Mr. Sibomana sent attendees messages regarding Ingabire Day and videos concerning
political repression, killings, disappearances and abusive prosecutions in Rwanda.
Messrs. Hagenimana, Mutabazi and Nahimana and Ms. Uwimana sent Mr. Sibomana photos
of themselves holding a sign with the theme of “Ingabire Day 2021”. On 12 October 2021,
Mr. Nsengimana shared on social media a video of an activist discussing the suspicious death
of another activist in 2020, the disappearance of a journalist and the detention of a dissenter,
stating that the Government arbitrarily detained and disappeared people and announcing his
intention to cover Ingabire Day. He joined Mr. Sibomana’s telecommunication channels.
19.
Reportedly, on 13 October 2021, the eve of Ingabire Day, agents of the Rwanda
Investigation Bureau entered and searched the houses of Messrs. Hagenimana, Nahimana,
Ndayishimiye, Rucubanganya and Sibomana, arrested them and seized their belongings. That
same day, an unknown individual invited Mr. Nsengimana for a meeting, and Rwanda
Investigation Bureau agents arrested him upon his arrival, searched his house and seized his
property.
20.
On 14 October 2021, while Mr. Masengesho was on his way to work and
Mr. Mutabazi was at work, agents of the Rwanda Investigation Bureau arrested them.
21.
The agents of the Rwanda Investigation Bureau presented neither arrest nor search
warrants and did not inform the individuals of the reasons for their arrests at the moment of
arrest. The agents took the individuals into police custody in Remera, Kigali, locked them in
the same cell without mattresses or blankets, and denied them basic hygiene items for three
weeks.
22.
Each of the individuals was reportedly presented with a National Public Prosecution
Authority arrest and search warrant on 14 October 2021, except for Mr. Sibomana, to whom
this was presented on 17 October 2021.
23.
Their families learned about the arrests on 15 October 2021, when the Rwanda
Investigation Bureau shared information about the arrest on social media.
24.
Mr. Sibomana was allowed to correspond with his family members from
17 October 2021, and the others from 20 October 2021.
25.
Rwanda Investigation Bureau agents interrogated the individuals without granting
them access to an attorney. On 28 October 2021, they were brought before Kicukiro First
Instance Court in Kigali, which detained them for 30 days. This was the first time they had
appeared before a court. The Court has repeatedly renewed the detention order upon request
by the prosecutor.
3 See CCPR/C/RWA/CO/4.
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26.
During the detention hearings, the prosecution presented Mr. Nsengimana’s
journalistic materials, recordings, and transcripts of the individuals’ telecommunications,
acquired without the permission of the Prosecutor General.
27.
The individuals’ appeals have not been successful, and on 9 November 2021 they
were transferred to Nyarugenge Prison in Mageragere Sector, Kigali City. After this,
Kicukiro First Instance Court ordered another renewal of the detention order. However, the
presiding judge was not near the individuals’ place of detention, contrary to the requirements
of Rwandan law.
28.
Since 10 November 2021, Messrs. Sibomana and Nsengimana have been held in
solitary confinement in cold, dark cells, and have not been allowed to meet other detainees
unless there is a special event, such as a visit from officials. The source adds that while
Messrs. Sibomana and Nsengimana are allowed to meet their lawyers, they could not
correspond with their families from 10 November 2021 until March 2022. Since March 2022,
they have been allowed to talk with their family periodically and are currently allowed to
meet them once a week for 10 minutes. Since June 2022, they have been allowed to go outside
for fresh air, sunlight and physical exercise. Except for family visits and outside exercise,
they are still held in isolated cells. Reportedly, a prison guard exercised such violence against
Mr. Sibomana that he lost an artificial tooth.
29.
On 16 December 2021, Rwanda Investigation Bureau agents entered the house of
Ms. Uwimana, searched it, arrested her without providing a reason, and took her into police
custody in Remera, Kigali. They interrogated her without granting her access to an attorney
and explained the reason for her arrest a few hours after the arrest. On 21 December 2021
she was presented with an arrest warrant, issued by the National Public Prosecution Office
after the arrest, and was allowed to contact her family and an attorney. On 3 January 2022,
she was brought for the first time before Kicukiro First Instance Court, which kept her in
detention.
30.
Reportedly, guards at Nyarugenge Prison listened to the conversations between the
nine individuals and their attorneys and read their confidential case documents. The attorneys
raised this issue in the detention hearings before the Rwandan Bar Association, without
success.
31.
The nine individuals share cells and dining rooms with convicted prisoners.
32.
On 16 March 2022, the nine individuals were charged on the basis of their attendance
at the Centre for Applied Non-Violent Action and Strategies training session, their
preparation for Ingabire Day, and their statements on human rights violations in Rwanda.
33.
Mr. Sibomana was charged with: formation of or joining a criminal association, under
article 224 of Law No. 68/2018; conspiracy to commit an offence against the ruling power
or the President of the Republic, to cause uprising or unrest among the population, to commit
an offence to attack the forces of the law, and to organize an illegal demonstration or public
meeting, under articles 20, 202, 204, 205 and 225 of the same law; spreading false
information or harmful propaganda with intent to cause a hostile international opinion against
the Government, under article 194 of the same law; and the publication of rumours, under
article 39 of Law No. 60/2018.
34.
Mr. Nsengimana was charged with formation of or joining a criminal association, and
the publication of rumours; Mr. Mutabazi was charged with formation of or joining a criminal
association, and conspiracy to cause uprising or unrest among the population. The others
were charged with formation of or joining a criminal association; and conspiracy to commit
an offence against the ruling power or the President, to cause uprising or unrest among the
population, to commit an offence to attack the forces of the law, and to organize an illegal
demonstration or public meeting.
35.
The prosecutor seeks a 20-year sentence for Mr. Mutabazi, a 10-year sentence for
Mr. Ngensimana and a life sentence for the others.
36.
The nine individuals are currently detained in Nyarugenge Prison.
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(iii)
Legal analysis
37.
The source argues that the arrest and detention of the nine individuals is arbitrary
under categories I, II, III and V.
a.
Category I
38.
The source argues that no legal basis can justify the detention of the nine individuals.
39.
Allegedly, Rwanda Investigation Bureau agents did not invoke any legal basis at the
time of the nine individuals’ arrest on 13 and 14 October 2021 and 16 December 2021, failing
to present arrest warrants or to inform them of the reasons for their arrests.
40.
The source argues that by arresting the nine individuals without presenting an arrest
warrant or informing them of the reasons for their arrest at the time of the arrest and by not
promptly informing Mr. Sibomana of the charges against him, the Government violated
articles 3 and 9 of the Universal Declaration of Human Rights and article 9 (1) and (2) of the
Covenant.
41.
The source submits that enforced disappearance and incommunicado detention lack
any valid legal basis and are inherently arbitrary, as they place the victim outside the
protection of the law and deprive them of any legal safeguards.4
42.
Reportedly, the nine individuals were forcibly disappeared after their arrests on 13 and
14 October 2021, and on 16 December 2021 for Ms. Uwimana, as their fate and whereabouts
remained unknown until 15 October 2021 for eight of them and until 21 December 2021 for
Ms. Uwimana.
43.
The source adds that the nine individuals were allowed to correspond with their
families and attorneys only from 17 October 2021 (with regard to Mr. Sibomana), 20 October
2021 (with regard to the others, except Ms. Uwimana) and 21 December 2021 (with regard
to Ms. Uwimana). The nine individuals were held incommunicado and without any legal
safeguards from the moment of their arrest.
44.
From 10 November 2021 until March 2022, Messrs. Sibomana and Nsengimana were
again denied their right to correspond with their family members.
45.
The individuals, except Ms. Uwimana, were first brought before a court on
28 October 2021, two weeks after their arrests on 13 and 14 October 2021, while
Ms. Uwimana was first brought before a court on 3 January 2022, 19 days after her arrest on
16 December 2021. The source argues that these delays violate the 48-hour rule and
article 9 (3) and (4) of the Covenant.5
46.
Detention pending trial must be based on an individualized determination that it is
reasonable and necessary, considering all the circumstances.6
47.
The decision of Kicukiro First Instance Court on 9 November 2021 on the renewal of
the individuals’ detention does not include an individualized determination of whether less
restrictive measures than detention were available to ensure the individuals’ appearance at
trial. Instead, the decision was based only on the fact that they had been charged with serious
crimes, in violation of article 8 of the Universal Declaration of Human Rights and
articles 2 (3) and 9 (3) and (4) of the Covenant.
48.
The source notes that the principle of legality, enshrined in article 11 (2) of the
Universal Declaration of Human Rights and article 15 (1) of the Covenant, requires laws to
be formulated with sufficient precision so that the individual can access and understand the
law and regulate their conduct accordingly.7
49.
Allegedly, the Government applied vague and overly broad provisions in the case of
the nine individuals, and has not provided any legal basis to justify their deprivation of
liberty. For instance, article 202 of the Law Determining Offences and Penalties in General
4 Human Rights Committee, general comment No. 35 (2014); and opinion No. 86/2020.
5 Human Rights Committee, general comment No. 35 (2014).
6 Ibid.
7 See opinion No. 37/2020.
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orders a life sentence for “any act to harm the established Government or overthrowing it by
use of military force or any other means” and “any act against the President of the Republic
with intent to harm the established Government or overthrowing it”. Article 204 of the same
law punishes anyone who publicly, either by a speech, writings of any kind, images or any
symbols, incites the population to reject the established Government. The source argues that
these vague and overly broad provisions allow officials to punish any acts encouraging
people to reject the Government, ranging from legitimate challenges, to democratically
changing the Government, to violent coups.8
50.
Similarly, the source submits that it is unclear what is considered a rumour, whether
it requires falsity, and how severe the potential fear and loss of credibility needs to be under
article 39 of the Law on Prevention and Punishment of Cybercrimes.
51.
The source concludes that the Government violated article 11 (2) of the Universal
Declaration of Human Rights and article 15 (1) of the Covenant.
b.
Category II
52.
The source recalls that the right to freedom of opinion and expression covers political
discourse, commentary on public affairs, and discussion of human rights, among other
things.9 It includes the right to criticize and openly and publicly evaluate governments
without fear of interference or punishment, enabling members of the political opposition and
human rights activists to criticize and expose illegal practices, to assemble peacefully and to
protest against the Government.10
53.
It contends that the detention of the nine individuals resulted from their exercise of
the rights to freedom of opinion and expression, peaceful assembly and association. The
restrictions set by Rwandan law broadly criminalize the exercise of these rights altogether,
and where they do not, their vagueness renders it impossible to invoke any legal basis to
justify the restrictions.
c.
Category III
54.
The source submits that the individuals’ deprivation of liberty is arbitrary under
category III.
55.
The nine individuals were not given timely access to an attorney and were interrogated
without one, from the time of their arrests on 13 and 14 October 2021 until: 17 October 2021
in the case of Mr. Sibomana; 20 October 2021 for Messrs. Hagenimana, Masengesho,
Mutabazi, Nahimana, Ndayishimiye, Nsengimana and Rucubanganya; and 21 December
2021 for Ms. Uwimana. Furthermore, authorities reportedly listened in to conversations with
their attorneys and read confidential documents.
56.
Allegedly, these failures deprived the nine individuals of adequate facilities to prepare
for their defence. By not granting them timely access to an attorney and by violating the
confidentiality of their conversations, the authorities violated article 11 (1) of the Universal
Declaration of Human Rights and article 14 (3) (b) of the Covenant.
57.
By not allowing the nine individuals to notify their family members about their arrest
and to correspond with them, the nine individuals’ right to a fair trial was allegedly violated,
contrary to principles 15, 16 (1) and 19 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment.
58.
The individuals (except for Ms. Uwimana) were transferred to Nyarugenge Prison on
9 November 2021. According to the source, Kicukiro First Instance Court, which ordered the
renewal of detention, lacked territorial competence, as the one that had competence was the
Court of First Instance of Nyarugenge. Thus, article 10 of the Universal Declaration of
Human Rights and articles 9 (1) and 14 (1) of the Covenant were violated.
8 See opinion No. 27/2012.
9 Human Rights Committee, general comment No. 34 (2011), para. 11.
10 See opinion No. 22/2013.
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59.
During the detention hearings, the nine individuals’ telecommunication messages
were presented as evidence against them, without proof of prior permission by the Prosecutor
General to record them. Also, Mr. Nsengimana’s work-related journalistic materials, seized
during the house search, were presented as evidence against him.
60.
The source argues that by presenting illegally obtained evidence at the pretrial
hearings, the authorities violated article 10 of the Universal Declaration of Human Rights
and articles 9 (1) and 14 (1) of the Covenant.
61.
The source asserts that the nine individuals’ poor detention conditions at the beginning
of detention, and Messrs. Sibomana and Nsengimana’s prolonged solitary confinement,
impaired their ability to prepare for their defence and potentially reached the level of cruel,
inhuman or degrading treatment.
62.
The source recalls that eight of the individuals were arrested on 13 and 14 October
2021, and Ms. Uwimana on 16 December 2021, and that they were charged on 16 March
2022. Thus, their pretrial detention exceeded what would be a reasonable time, as their case
is not especially complex, and the delay was not attributable to them. It concludes that the
authorities violated their right to a fair trial under articles 9 (3) and 14 (3) (c) of the Covenant.
63.
Allegedly, these violations may indicate that the individuals have not been presumed
innocent, in violation of article 11 (1) of the Universal Declaration of Human Rights and
article 14 (2) of the Covenant.
d.
Category V
64.
The source asserts that the nine individuals’ political opinion is central to the present
case, as they were targeted by the authorities for belonging to the DALFA-Umurinzi Party
(with the exception of Mr. Nsengimana) – Mr. Nahimana, Mr. Sibomana and Mr. Mutabazi
holding leadership positions – and for criticizing the Government on human rights issues.
65.
The view that there has been discrimination against members of the
DALFA-Umurinzi Party and the opposition is supported by the earlier detentions of
Mr. Sibomana and several other opposition members.
66.
The source concludes that the Government violated articles 2 and 7 of the Universal
Declaration of Human Rights and articles 2 (1) and 26 of the Covenant, giving the nine
individuals’ deprivation of liberty an arbitrary character under category V.
(b)
Response from the Government
67.
On 13 November 2023, the Working Group transmitted the allegations from the
source to the Government under its regular communications procedure, requesting a reply by
12 January 2024.
68.
On 12 December 2023, the Government requested an extension to file its reply. On
9 February 2024, the Government submitted its reply denying the allegations and offering its
explanation with regard to the arrest and detention of the nine individuals.
69.
The Government explains that the nine individuals are members of the
DALFA-Umurinzi Party and are currently under arrest and on trial on the following charges:
formation of or joining a criminal association, under article 224 of Law No. 68/2018;
conspiracy to commit an offence against the ruling power or the President of the Republic,
to cause uprising or unrest among the population, to commit an offence to attack the forces
of the law, and to organize an illegal demonstration or public meeting, under articles 20, 202,
204, 205 and 225 of the same law; spreading false information or harmful propaganda with
intent to cause a hostile international opinion against the Government of Rwanda, under
article 194 of the same law; and the publication of rumours, under article 39 of Law
No. 60/2018. The arrest and pretrial detention of these individuals was conducted in full
compliance with national and international law.
70.
On 13 and 14 October 2021 and 7 December 2021, pursuant to article 31 of Law
No. 027/2019, warrants ordering the apprehension of the nine individuals were issued by
national prosecutors, following which the individuals were arrested on 13 and 14 October
2021, with the exception of Ms. Uwimana who was arrested on 14 December 2021. On the
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day of their arrest, each individual was informed of the grounds for their arrest, the charges
against them and their “Miranda” rights. The arrested individuals signed their arrest
statements to indicate their awareness of such rights, including access to a lawyer, in
accordance with Rwandan law. In addition to the arrest statements, the individuals were
interrogated by the Rwanda Investigation Bureau and were informed again of the charges
against them and their right to a lawyer. These arrest statements and interrogation records, as
signed by the individuals in acknowledgment, on the day of their arrests, meet the
requirement of promptly providing the reasons for the arrest, in accordance with national and
international laws.
71.
The Government refutes the source’s claim that the nine individuals were not
informed of the charges against them. This claim is made on the basis that provisional arrest
warrants were issued on 18 October 2021 for eight individuals and on 21 December 2021 for
Ms. Uwimana, several days after their arrests. Warrants issued on the day of arrest are
warrants for individuals to be brought by force pursuant to article 31 of the Criminal
Procedure Code, under which a prosecutor issues a warrant to bring suspects by force to the
Rwanda Investigation Bureau. Upon arrest, the individuals were presented with arrest
statements in accordance with article 66 of the same law, informing them of the charges
against them and ordering five days of detention pending investigation. The arrest warrants
issued days after the arrests are pursuant to article 35 of the same law and are provisional
warrants issued by the prosecutor during case preparation.
72.
The individuals were represented by a lawyer of their choosing at all times during the
proceedings and continue to be represented. During the investigative stage of the
proceedings, some of the individuals availed themselves to their right to a lawyer and some
temporarily waived this right, as follows:
• Mr. Nsengimana: Arrested on 13 October 2021, during his interrogation by the
Rwanda Investigation Bureau on the same day, he asked to be represented by a
specific lawyer. This lawyer was not available to represent him, so he consented on
18 October 2021 to be represented by a pro bono lawyer who was present in all the
subsequent interrogations by the Rwanda Investigation Bureau and the National
Prosecution.
• Mr. Hagenimana: Arrested on 14 October 2021, he waived his right to have a lawyer
present during his interrogations by the Rwanda Investigation Bureau on 14 and 15
October 2021. On 18 October, he availed himself of his right to a lawyer, and for all
the subsequent interrogations he was interrogated in the presence of his lawyer.
• Mr. Masengesho: Arrested on 14 October 2021, during his interrogation by the
Rwanda Investigation Bureau on the same day, he asked for a lawyer and indicated
that his lawyer of choice would be available on 19 October 2021. On 15 October 2021,
he waived his right to a lawyer in an interrogation by the Rwanda Investigation
Bureau. From the time when his lawyer became available, on 19 October 2021, he
had his lawyer present in all subsequent interrogations.
• Mr. Mutabazi: Arrested on 14 October 2021, during his first interrogation by the
Rwanda Investigation Bureau on the same day, he asked for a lawyer and indicated
that the lawyer would be available on 18 October 2021. For his second interview, on
15 October 2021, he waived his right to a lawyer. When his lawyer became available
on 18 October 2021, he had his lawyer present in all subsequent interrogations.
• Mr. Nahimana: Arrested on 15 October 2021, he waived his right to a lawyer in all
his interrogations by the Rwanda Investigation Bureau and the National Prosecution.
• Mr. Ndayishimiye: Arrested on 13 October 2021, during his interrogation by the
Rwanda Investigation Bureau, he asked for a lawyer. On 15 October 2021, he waived
his right to a lawyer and was interrogated by the Rwanda Investigation Bureau. From
18 October 2021, he requested the presence of his lawyer, and all subsequent
interrogations were conducted in the presence of his lawyer.
• Mr. Rucubanganya: Arrested on 14 October 2021, during his first interrogation by the
Rwanda Investigation Bureau on the same day, he asked for a lawyer and indicated
that his lawyer of choice would be available on 19 October 2021. On 15 October 2021,
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he waived his right to a lawyer in an interrogation by the Rwanda Investigation
Bureau. From the time when his lawyer became available, on 19 October 2021, he
had his lawyer present in all subsequent interrogations.
• Mr. Sibomana: Arrested on 14 October 2021, during his first interrogation by the
Rwanda Investigation Bureau on the same day, he asked for a lawyer. On 15 October
2021, he waived his right to a lawyer in an interrogation by the Rwanda Investigation
Bureau. In all subsequent interrogations, he asked for and was represented by a lawyer
of his choice.
• Ms. Uwimana: Arrested on 16 December 2021, she waived her right to a lawyer in
both of her interrogations at the Rwanda Investigation Bureau, on 16 December and
20 December 2021. On 21 December 2021, during her interrogation by the
prosecution, she had her lawyer present and retained his services in all subsequent
interrogations.
73.
In addition, search warrants were issued against all the individuals (except
Ms. Uwimana) in accordance with article 55 of the Criminal Procedure Code. The searches
and the seizure of evidence collected were conducted in accordance with articles 55, 57, 60
and 61 of that law. The individuals concerned signed statements of seizure, acknowledging
the items seized in accordance with the law. This evidence was presented to the court by
prosecutors.
74.
Upon arrest, the individuals were registered as detainees and were detained at the
Remera and Kicukiro police stations. Their names and places of detention, and the names of
the authorities responsible for their detention, were recorded in registers available to all
persons concerned upon request. Records of the time and place of all interrogations and the
transcripts of the interrogations were made available for judicial and administrative purposes.
Upon arrest, they were permitted to contact their families, who assisted them in procuring a
lawyer. Their arrest (except in the case of Ms. Uwimana) was communicated publicly to the
media on 15 October 2021. As such, any claim that the detention of these individuals
amounted to enforced disappearance or incommunicado detention has no basis in fact.
75.
The Government also submits that the post-arrest and pretrial detention periods of the
individuals were conducted in accordance with the law. The individuals were detained for a
period in accordance with articles 31 and 35 of the Criminal Procedure Code. They appeared
before the judge within the time prescribed by the law. The determination of whether
detention pending investigation was warranted was conducted in an individualized manner,
considering the circumstances of each detained individual, in accordance with articles 66 and
76 of the Criminal Procedure Code. The fact that the request for provisional detention of
eight individuals is assessed in the same hearing does not preclude the judge from
undertaking an individual determination based on the specific circumstances of each
detainee.
76.
The competence of courts in the determination of their jurisdiction over any particular
case is subject to the determination of the given court when challenged on that basis. The
nine individuals challenged the jurisdiction of Kicukiro Primary Court on the basis that it
was not the nearest court, as is required under article 79 of the Criminal Procedure Code.
This preliminary objection was dismissed by the Court.
77.
Regarding the source’s claim that the detainees were charged with offences on the
basis of laws that are too vague and broad, the Government submits that all national laws are
clearly drafted and are defined in a manner that can be understood by a reasonable person. In
accordance with article 4 of the Law Determining Offences and Penalties in General, criminal
laws cannot be interpreted broadly and must be construed strictly, with the courts prohibited
from making judgments by analogies. Any perceived vagueness and overbreadth of a law
can be challenged in court, with the court having the authority to declare such a law
unconstitutional and thus prevent prosecution on the basis of that law. The individuals
concerned have not raised this objection in court.
78.
The Government submits that it has a duty to respect and protect the fundamental civil
and political rights of all persons, as enshrined in the Constitution of Rwanda and as
contained in the Covenant. The rights to freedom of opinion and expression and the right to
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GE.24-09680
freedom of peaceful assembly and association are protected without interference to the extent
that the exercise of these rights does not breach the bounds of national security or public
order, in accordance with the restrictions permitted by articles 19 (3) and 22 (2) of the
Covenant. The restrictions on these freedoms are provided by law, as contained in the Law
Determining Offences and Penalties in General and the Law on the Prevention and
Punishment of Cybercrimes, and are necessary for the protection of national security and
public order. The principles of necessity and proportionality are strictly applied to these
restrictions in order to ensure that they are only used for the stated purpose of protection of
national security and public order.
79.
The individuals’ arrests and detention were conducted in accordance with the law and
with due regard to their physical and mental well-being. Upon detention, access to adequate
food, drinks and sanitation was provided, in accordance with the standards of detention. The
detainees were allowed to be sent food parcels by family and friends. None of them were
detained in solitary confinement, as attested by prison records. In fact, the source itself
provides conflicting accounts, alleging that the individuals were simultaneously in solitary
confinement and forced to share cells and dining rooms with convicted inmates. None of the
detainees have raised any allegation of impropriety or violence by prison guards, and there
is no record of any of them requiring medical care. Thus, the Government cannot
independently verify these claims, as they were not raised by the individuals concerned and
there is no evidence that the alleged acts occurred.
80.
Rwandan laws guarantee fair and public trials for all accused persons before a
competent and independent court. The individuals were given adequate time and facilities to
prepare their defence with the lawyers of their choosing. Their right to communicate with the
lawyers in private, with the required confidentiality, was respected throughout. The trial on
the merits of the case was referred to Kigali High Court on 16 March 2022 within the legal
time limit stipulated under article 79 (2) of the Criminal Procedure Code. This pretrial
detention period is justified in the law due to the specific circumstances of the present case,
which is complex due to the severity of the charges and the substantial number of accused
persons. The case file was registered by the Court on 12 April 2022, which has not yet set a
date for the public hearing.
81.
With regard to claims of discrimination on the basis of political opinion, the
Government rejects these baseless claims and strongly reaffirms its commitment to equality
as enshrined in the Constitution. It thus rejects the assertions that the individuals were
discriminated against on the basis of their differing political opinion or their membership of
an unregistered political party.
82.
Therefore, the Government submits that the arrest and detention of the nine
individuals was not in contravention of the Covenant or the Universal Declaration of Human
Rights. Rwanda is demonstrably committed to the protection and promotion of the human
rights of Rwandans and all who fall under the jurisdiction of Rwanda.
(c)
Further comments from the source
83.
The Working Group submitted the Government’s reply to the source for its reaction.
On 8 March 2024, the source submitted its further comments.
84.
The source notes that the dates of arrest stated in the Government’s response differ
from those in its submission, as follows: with regard to Mr. Hagenimana – 14 October 2021
instead of 13 October 2021; with regard to Mr. Nahimana – 15 October 2021 instead of 13
October 2021; with regard to Mr. Rucubanganya – 14 October 2021 instead of 13 October
2021; and with regard to Mr. Sibomana – 14 October 2021 instead of 13 October 2021. The
source accepts 14 October 2021 as Messrs. Hagenimana and Nahimana’s date of arrest.
85.
Due to the inconsistent dates in the Government’s documents, the source maintains
that Mr. Rucubanganya was arrested on 13 October 2021. Regarding Mr. Sibomana’s arrest,
and based on its own information, the source submits that the arrest date was 13 October
2021, which is likely, given the time at which the “arrest statements” and “statements of
seizure” were signed. The source notes that these documents were signed only 15 minutes
after midnight, which is the reason why it argues that Mr. Sibomana was arrested the day
before (13 October 2021).
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GE.24-09680
11
86.
Concerning the Government’s assertions that the individuals were arrested following
the issuance of arrest warrants, the source argues that informing the individuals about the
legal basis of their arrest (not the factual basis) at the police station after their arrest does not
meet the requirements as regards the right of the detainee to be informed of the reason for the
arrest at the time of the arrest.
87.
Although the Government claims that the individuals’ names and places of detention,
and the names of the officials responsible, were recorded in registers available to all persons
concerned upon request, and that the arrested individuals could contact their families and
were assisted in procuring attorneys, the Government has not provided evidence of the
alleged registers, nor stated when the individuals were first allowed to communicate with
their attorneys. It is unclear who the “persons concerned” who could request information
from the registers are or how they were meant to know how to request this information. This
does not meet the requirement of principle 16 (1) of the Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment. The source argues that the
alleged availability of information upon request is different from actively notifying family
members, and maintains the dates provided in its submission when the families learned about
the individuals’ arrest.
88.
The source maintains that the Government has not provided any justification for the
delay in bringing the individuals before a judge.
2.
Discussion
89.
The Working Group thanks the source and the Government for their submissions.
90.
In determining whether a person’s detention is arbitrary, the Working Group has
regard to the principles established in its jurisprudence to deal with evidentiary issues. If the
source has established a prima facie case for breach of international law constituting arbitrary
detention, the burden of proof should be understood to rest upon the Government if it wishes
to refute the allegations.11 Mere assertions by the Government that lawful procedures have
been followed are not sufficient to rebut the source’s allegations.12
(a)
Category I
91.
The source argues that no legal basis can justify the detention of the nine individuals,
rendering their deprivation of liberty arbitrary under category I.
92.
The Working Group recalls that detention is considered arbitrary under category I if
it lacks a legal basis. Under article 9 (1) of the Covenant, no one is to be deprived of liberty
except on such grounds and in accordance with such procedures as are established by law.
Article 9 (2) of the Covenant provides that anyone who is arrested is to be informed, at the
time of arrest, of the reasons for their arrest and is to be promptly informed of any charges
against them. The Working Group has consistently stated that, for a deprivation of liberty to
be justified, it must have a legal basis. It is not sufficient for there to be a law or a practice
authorizing the arrest. The authorities must invoke that legal basis and apply it to the
circumstances of the case.13 This is typically done through an arrest warrant or arrest order,
or equivalent document.14 The reasons for the arrest must be provided immediately upon
arrest and must include not only the general legal basis of the arrest, but also enough factual
specifics to indicate the substance of the complaint, such as the wrongful act and the identity
of an alleged victim.15
93.
The source argues that the nine individuals were arrested without an arrest warrant
and were not informed of the reasons for their arrest. The Government denies these
allegations and affirms that on 13 and 14 October 2021 and 7 December 2021 warrants
11 A/HRC/19/57, para. 68.
12 Ibid.
13 Opinion No. 9/2019, para. 29.
14 Opinion 88/2017, para. 27. In cases of arrests made in flagrante delicto, the opportunity to obtain a
warrant will typically not be available.
15 Human Rights Committee, general comment No. 35 (2014), para. 25; and opinion No. 85/2021,
para. 69.
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GE.24-09680
ordering the apprehension of the nine individuals were issued by national prosecutors
pursuant to article 31 of the Criminal Procedure Code, and on the day of their arrest, everyone
was informed of the grounds for their arrest, the charges against them and their “Miranda”
rights. Furthermore, the Government noted that the nine individuals signed their arrest
statements to indicate their awareness of such rights. In its further comments, while the source
does not challenge the Government’s assertion that warrants were issued and statements were
signed by the nine individuals, it claims that the Government only informed the individuals
about the legal basis of their arrest, and not the factual basis.
94.
The Working Group notes that the warrants ordering the apprehension of the nine
individuals were issued by national prosecutors, in accordance with article 31 of the Criminal
Procedure Code. The Working Group recalls that any form of detention or imprisonment
should be ordered by a judicial or other authority under the law or be subjected to the effective
control of that authority, whose status and tenure should afford the strongest possible
guarantees of competence, impartiality and independence, in accordance with principle 4 of
the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. Any deprivation of liberty without a valid arrest warrant issued by a
competent, independent and impartial authority with oversight exercised by the judicial
authority is arbitrary and lacks legal basis. In the present case, the Government has failed to
demonstrate that the arrest warrants issued by the national prosecutors were subjected to the
effective control of a judicial or other authority under the law, in violation of articles 3 and 9
of the Universal Declaration of Human Rights and contrary to principle 4 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
95.
The source asserts that the nine individuals were forcibly disappeared after their
arrests on 13 and 14 October 2021, and 16 December 2021 for Ms. Uwimana, as their fate
and whereabouts remained unknown until 15 October 2021 for eight of them and until
21 December 2021 for Ms. Uwimana. It adds that the nine individuals were allowed to
correspond with their families and attorneys only from 17 October 2021 (Mr. Sibomana),
20 October 2021 (the others, with the exception of Ms. Uwimana) and 21 December 2021
(Ms. Uwimana) onwards. Therefore, the source asserts that the nine individuals were held
incommunicado. The Government explains that following their arrest, the individuals were
all duly registered as detainees and detained at Remera and Kicukiro police stations, and
registers were available to all persons concerned upon request. Moreover, the individuals
were permitted to contact their families, who assisted them in procuring a lawyer, and their
arrest was communicated publicly to the media on 15 October 2021.
96.
In its further comments, the source argues that the alleged availability of information
upon request is different from actively notifying family members.
97.
The Working Group recalls that an enforced disappearance occurs when the arrest,
detention, abduction or any other form of deprivation of liberty by State agents or by persons
or groups of persons acting with the authorization, support or acquiescence of the State, is
followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate
or whereabouts of the disappeared person, which places such a person outside the protection
of the law. The Working Group is unable to make a finding in this regard, as the source has
not furnished it with sufficient and relevant information relating to the individuals’ alleged
enforced disappearance and incommunicado detention, nor has the source demonstrated that
the Government refused to acknowledge their deprivation of liberty or concealed their fate
and whereabouts.
98.
Furthermore, the Working Group notes that more than two weeks elapsed between the
nine individuals’ respective arrests and their first appearance before a judge. According to
article 9 (3) of the Covenant, anyone arrested or detained on a criminal charge is to be brought
promptly before a judge to exercise judicial power. As the Human Rights Committee has
noted, 48 hours is ordinarily sufficient to satisfy the requirement of bringing a detainee
“promptly” before a judge or other officer authorized by law following his or her arrest; any
longer delay must remain absolutely exceptional and be justified under the circumstances.16
16 Human Rights Committee, general comment No. 35 (2014), paras. 32 and 33.
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GE.24-09680
13
99.
The source submits that the individuals, except Ms. Uwimana, were first brought
before a court on 28 October 2021, two weeks after their arrest on 13 and 14 October 2021,
whereas Ms. Uwimana was first brought before a court on 3 January 2022, that is, 19 days
after her arrest on 16 December 2021. The Government submits that the post-arrest and
pretrial detention periods of the individuals were conducted fully in accordance with the law.
Having considered the source’s and the Government’s submissions, the Working Group finds
that the nine individuals were not brought promptly before a judge, in violation of article 9 (3)
of the Covenant.
100.
In addition, the Working Group recalls that it is a well-established norm of
international law that pretrial detention is to be the exception and not the rule, and that it
should be ordered for as short a time as possible.17 Article 9 (3) of the Covenant provides that
it is not to be the general rule that persons awaiting trial are detained, but release may be
subject to guarantees to appear for trial and at any other stage of the judicial proceedings. It
follows that liberty is recognized as a principle and detention as an exception in the interests
of justice.18 In order to give effect to this principle, pretrial detention must be based on an
individualized determination that it is reasonable and necessary, for such purposes as to
prevent flight, interference with evidence or the recurrence of crime. 19 The courts must
examine whether alternatives to detention would render custodial measures unnecessary.20 In
the present case, the source claims that the court has repeatedly renewed the nine individuals’
detention orders upon the prosecutor’s request, while the Government has limited itself to
asserting that the court based its decision on strong reasons to suspect the individuals of the
crimes they were charged with, in accordance with domestic law. The Working Group is not
convinced that the individuals’ pretrial detention was based on an individualized
determination that it was reasonable and necessary, and thus it cannot accept that their pretrial
detention was properly constituted in accordance with article 9 (3) of the Covenant.
101.
For the reasons above, the Working Group finds that the Government failed to
establish a legal basis for the nine individuals’ arrests and detention. Their detention is thus
arbitrary under category I.
(b)
Category II
102.
According to the source, the nine individuals’ detention clearly resulted from their
exercise of the rights to freedom of opinion and expression and freedom of peaceful assembly
and association.
103.
The Working Group notes that freedoms of opinion and expression as expressed in
article 19 of the Covenant are indispensable conditions for the full development of the person.
They are essential for any society and in fact constitute the foundation stone of every free
and democratic society.21 Freedom of expression includes the right to seek, receive and
impart information and ideas of all kinds, regardless of frontiers. This right includes the
expression and receipt of communications of every form of idea and opinion capable of
transmission to others, including political opinions. Moreover, article 19 (2) of the Covenant
protects all forms of expression and the means of their dissemination, including all forms of
audiovisual as well as electronic and Internet-based modes of expression. The Working
Group further recalls that the Human Rights Committee has clarified that the protection under
article 21 of the Covenant extends to participating in an “assembly” by organizing or taking
part in a gathering of persons for a purpose such as expressing oneself, conveying a position
on a particular issue or exchanging ideas.22
104.
The Working Group notes the source’s submissions that the nine individuals’
deprivation of liberty stems from the exercise of their right to freedom of expression and
assembly, for their criticism of the Government and their participation in the
17 Opinion No. 8/2020, para. 14; Human Rights Committee, general comment No. 35 (2014), para. 38;
and A/HRC/19/57, paras. 48–58.
18 A/HRC/19/57, para. 54.
19 Human Rights Committee, general comment No. 35 (2014), para. 38.
20 Ibid.; and opinion No. 83/2019, para. 68.
21 Human Rights Committee, general comment No. 34 (2011).
22 See the Committee’s general comment No. 37 (2020).
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GE.24-09680
DALFA-Umurinzi Party. Moreover, Mr. Nsengimana is a journalist who broadcasts
discussions critical of the Government. The Government claims that respect and protection
of the fundamental civil and political rights of all persons is enshrined in the Constitution.
The rights to freedom of opinion and expression and freedom of peaceful assembly and
association are protected without interference to the extent that the exercise of these rights
does not breach the bounds of national security or public order, in accordance with the
restrictions permitted by articles 19 (3) and 22 (2) of the Covenant and contained in Rwandan
domestic law. The Government submits that the principles of necessity and proportionality
are strictly applied to these restrictions in order to ensure that they are only used for the stated
purpose of protection of national security and public order.
105.
The Working Group recalls that the permissible restrictions on the above-mentioned
rights set out in articles 19 (3) and 21 of the Covenant are necessary to protect a legitimate
interest. It would appear from the response of the Government that it considers that the arrests
and detention of the nine individuals were necessary for the protection of national security
and public order.
106.
The Working Group notes that the nine individuals had arranged a training session
which involved discussions and presentations on tactics to combat the alleged mistreatment,
social injustice, lack of consultation in decision-making, excessive land taxes and detentions
in Rwanda. There is nothing to suggest that the permissible restrictions on the rights set out
in articles 19 (3) and 21 of the Covenant would apply in the present case. The Working Group
is not convinced that arresting, detaining and prosecuting the nine individuals was necessary
to protect a legitimate interest under these provisions. Importantly, the nine individuals’
criticism of the Government did not call for violence and could not reasonably be considered
as a threat to national security, public order, public health or morals, or the rights or
reputations of others.
107.
Thus, the Working Group considers that the conduct of the nine individuals fell within
the exercise of the rights to freedom of opinion and expression, and to peaceful assembly,
protected under articles 19 and 20 of the Universal Declaration of Human Rights and
articles 19 and 21 of the Covenant, and that they were detained for exercising these rights.
Their opposition to or criticism of government policies and actions through their statements
concerns matters of public interest.
108.
In its submission, the source asserts that the provisions under which the nine
individuals were charged, namely articles 202 and 204 of the Law Determining Offences and
Penalties in General, are vague and overly broad. The Government submits that the laws are
clearly drafted, and notes that in accordance with article 4 of the Law Determining Offences
and Penalties in General, criminal laws cannot be interpreted broadly and must be construed
strictly, with the courts prohibited from making judgments by analogies. The Government
notes that the perceived vagueness and overbreadth of a law can be challenged in court,
however the individuals concerned did not raise this objection in court.
109.
The Working Group recalls that laws that are vaguely and broadly worded may have
a deterrent effect on the exercise of the rights to freedom of thought, conscience and religion,
freedom of opinion and expression, freedom of peaceful assembly and association,
participation in political and public affairs, equality and non-discrimination, and protection
of persons belonging to ethnic, religious or linguistic minorities, as they have the potential
for abuse, including the arbitrary deprivation of liberty.23 Moreover, the Working Group
recalls its jurisprudence concerning Rwanda, in which it found that journalists and former
members of the Rwandan armed forces had been arbitrarily detained for having peacefully
exercised their right to freedom of opinion and expression. The Working Group also notes
that the Human Rights Committee, in its concluding observations on the fourth periodic
report of Rwanda, highlighted the vague nature of the definitions of certain offences, which
makes them susceptible to abuse, and expressed concern about the chilling effect they may
have on freedom of expression. It noted that opposition politicians, journalists and human
rights defenders had been prosecuted on the basis of such vague charges to prevent them
23 Opinion No. 10/2018, para. 55.
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GE.24-09680
15
from expressing their opinions. 24 Furthermore, the Special Rapporteur on the rights to
freedom of peaceful assembly and of association stressed his concern over the fate of
unregistered opposition parties whose leaders had been imprisoned.25
110.
The Working Group concludes that the detention of the nine individuals resulted from
the peaceful exercise of their rights to freedom of opinion and expression and assembly, as
well as their right to take part in the conduct of public affairs, and was contrary to articles 19
and 21 (1) of the Universal Declaration of Human Rights and articles 19, 21 and 25 (a) of the
Covenant. Their detention is thus arbitrary under category II. The Working Group refers the
case to the Special Rapporteur on the right to freedom of opinion and expression.
(c)
Category III
111.
The source argues that the nine individuals’ arrest and detention was characterized by
total or partial non-observance of the international norms relating to the right to a fair trial
and due process.
112.
The Working Group takes note of the source’s allegations that the nine individuals
were not given timely access to a lawyer and were interrogated without legal counsel, from
the time of their arrests, until: 17 October 2021 in the case of Mr. Sibomana; 20 October 2021
for Messrs. Hagenimana, Masengesho, Mutabazi, Nahimana, Ndayishimiye, Nsengimana
and Rucubanganya; and 21 December 2021 for Ms. Uwimana. Furthermore, officials in
Nyarugenge Prison reportedly listened in to the nine individuals’ conversations with their
attorneys and read confidential documents.
113.
The Government contends that all individuals detained were informed of their right to
be interrogated in the presence of their lawyers and were permitted access to means to contact
them. At the investigative stage, some of the individuals availed themselves of their right to
a lawyer and some temporarily waived this right. Moreover, the individuals’ right to private
and confidential communication with their lawyers has been respected. In its additional
comments, the source claims that although the Government listed the dates when the
individuals’ requested attorneys became available, it has not stated when they were first
allowed to communicate with them, the nature and frequency of their contact, or the
conditions of confidentiality applicable. Moreover, even though the judges were informed of
the lack of confidentiality between the individuals and their lawyers, the complaints were not
considered.
114.
All persons deprived of their liberty have the right to legal assistance by counsel of
their choice at any time during their detention, including immediately after their
apprehension, and such access must be provided without delay.26 Legal consultations may be
within sight but not within hearing of the authorities, and all communications with counsel
must remain confidential.27 The Working Group is not convinced that sufficient information
has been presented to show that the nine individuals benefited from confidential legal
assistance, and thus considers that the Government violated the nine individuals’ right to have
adequate time and facilities for the preparation of their defence and to communicate with a
lawyer pursuant to article 14 (3) (b) of the Covenant.
115.
The Working Group takes note of the source’s allegations that after the individuals,
with the exception of Ms. Uwimana, were transferred to Nyarugenge Prison on 9 November
2021, Kicukiro First Instance Court ordered another renewal of their detention although the
presiding judge was not the nearest to their place of detention. According to the source, the
court with territorial competence would have been Nyarugenge First Instance Court. The
Government, in response, submits that the nine individuals in fact challenged the jurisdiction
of the Court and that this was dismissed by the Court on the basis that the Kicukiro and
Nyarugenge courts are in the same city and the intentions of lawmakers in requiring that
24 CCPR/C/RWA/CO/4, para. 39.
25 A/HRC/26/29/Add.2, para. 39.
26 A/HRC/30/37, principle 9 and guideline 8; and Human Rights Committee, general comment No. 35
(2014), para. 35.
27 Rule 61 (1) of the Nelson Mandela Rules; principle 18 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment; and A/HRC/30/37, guideline 8.
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GE.24-09680
detention be ordered by the nearest court were to ensure that the accused did not encounter
undue challenges in reaching the court; it is not a matter of the territory where the accused is
detained. In its additional comments, the source reiterated its submission. The Working
Group is thus inclined to accept the position of the Government, because the Working Group
is not intended to assume the role of an appellate body for decisions of domestic courts and
tribunals.
116.
Furthermore, the Working Group notes the source’s allegations that the nine
individuals’ telecommunication messages were presented as evidence against them without
proof of prior permission by the Prosecutor General to record them. Moreover,
Mr. Nsengimana’s work-related journalistic materials were seized during the search of his
house and presented as evidence against him. The Government contends that the search and
seizure of evidence collected was conducted in accordance with the Criminal Procedure
Code, and that any claim that evidence was illegally seized from the individuals’ houses is
demonstrably false.
117.
The Working Group notes that it is accepted in international human rights
jurisprudence that the question of whether the use as evidence of information obtained in
violation of privacy rights renders a trial as a whole unfair has to be determined with regard
to all the circumstances of the case.28 The Working Group lacks sufficient information to
make a conclusion in this respect.
118.
The Working Group notes the source’s allegations that the nine individuals’ poor
detention conditions at the beginning of their detention, Mr. Sibomana and
Mr. Nsengimana’s prolonged solitary confinement, and the violence exerted against
Mr. Sibomana impaired all nine individuals’ abilities to prepare for their defence and
potentially reached the level of cruel, inhuman or degrading treatment. The Government
denies the source’s allegations and maintains that the nine individuals have been treated
humanely, in accordance with domestic law and international standards.
119.
The source has not explained how the detention conditions have negatively affected
the ability of the nine individuals to prepare their defence, or their chances of receiving a fair
trial. However, the Working Group wishes to remind the Government that, in accordance
with article 10 of the Covenant, all persons deprived of their liberty must be treated with
humanity and with respect for the inherent dignity of the human person.
120.
Moreover, the Working Group notes that it has been more than two years since the
nine individuals were detained in October and December 2021. While the case is complex
due to the severity of the charges and the large number of accused persons, the Government
has offered no explanation as to why this process has taken over two years. Given the
extensive delay, the courts must reconsider alternatives to detention.29 The right to be tried
within a reasonable time and without undue delay is one of the fair trial guarantees embodied
in articles 10 and 11 (1) of the Universal Declaration of Human Rights and articles 9 (3) and
14 (3) (c) of the Covenant, and it has been violated in the present case. If the nine individuals
cannot be tried within a reasonable time, they are entitled to release under article 9 (3) of the
Covenant.30
121.
Lastly, the Working Group notes that the Government has not addressed the
submission made by the source that the nine individuals were held with convicted persons
during their pretrial detention. Article 10 (2) (a) of the Covenant requires that those in pretrial
detention be held separately from convicted persons, a provision that was ignored in the
present case.
122.
Accordingly, the Working Group finds that the violations of the nine individuals’ right
to a fair trial were of such gravity as to give their detention an arbitrary character. Their
deprivation of liberty thus falls under category III.
28 European Court of Human Rights, Bykov v. Russia (application No. 4378/02), judgment of 10 March
2009, paras. 94–98.
29 Human Rights Council, general comment No. 35 (2014), para. 37.
30 A/HRC/19/57, paras. 48–58; and opinion No. 18/2018, para. 50.
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17
(d)
Category V
123.
The source argues that the nine individuals’ political opinion is central to the present
case, as they were targeted by the authorities for belonging to the DALFA-Umurinzi Party –
Messrs. Nahimana, Sibomana and Mutabazi holding leadership positions, and
Mr. Nsengimana being a journalist critical of the Government – and for criticizing the
Government on human rights issues.
124.
The Government denies these claims and states that it is committed to equality, as
enshrined in the Constitution and treaties ratified by Rwanda. It contends that the individuals
were not prosecuted for their membership of the DALFA-Umurinzi Party but for criminal
offences.
125.
The Working Group recalls that detention is arbitrary under category V when it
constitutes a violation of international law on the grounds of discrimination based on birth,
national, ethnic or social origin, religion, or political or other opinion, among other grounds.
Furthermore, it notes that when detention has resulted from the active exercise of civil and
political rights, there is a strong presumption that the detention also constitutes a violation of
international law on the grounds of discrimination based on political or other views.
126.
As concluded in the analysis under category II, the deprivation of liberty of the nine
individuals was the result of the peaceful exercise of their fundamental rights under
international law. The Working Group is convinced that the nine individuals were targeted
because of their political opinion against government policies.
127.
The Working Group thus finds that the nine individuals were deprived of their liberty
on discriminatory grounds based on their political opinion in seeking to hold the authorities
to account. Their deprivation of liberty violated articles 2 and 7 of the Universal Declaration
of Human Rights and articles 2 (1) and 26 of the Covenant, and is arbitrary according to
category V.
3.
Disposition
128.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Hamad Hagenimana, Emmanuel Masengesho, Alphonse
Mutabazi, Marcel Nahimana, Jean Claude Ndayishimiye, Theoneste Nsengimana,
Alexis Rucubanganya, Sylvain Sibomana and Claudine Uwimana, being in
contravention of articles 2, 3, 7, 9, 10, 11, 19 and 20 of the Universal Declaration of
Human Rights and articles 2, 9, 10, 14, 19, 21, 25 and 26 of the International Covenant
on Civil and Political Rights, is arbitrary and falls within categories I, II, III and V.
129.
The Working Group requests the Government of Rwanda to take the steps necessary
to remedy the situation of Mr. Hagenimana, Mr. Masengesho, Mr. Mutabazi, Mr. Nahimana,
Mr. Ndayishimiye, Mr. Nsengimana, Mr. Rucubanganya, Mr. Sibomana and Ms. Uwimana
without delay and bring it into conformity with the relevant international norms, including
those set out in the Universal Declaration of Human Rights and the International Covenant
on Civil and Political Rights.
130.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Hagenimana, Mr. Masengesho,
Mr. Mutabazi, Mr. Nahimana, Mr. Ndayishimiye, Mr. Nsengimana, Mr. Rucubanganya,
Mr. Sibomana and Ms. Uwimana immediately and accord them an enforceable right to
compensation and other reparations, in accordance with international law.
131.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Hagenimana, Mr. Masengesho, Mr. Mutabazi, Mr. Nahimana, Mr. Ndayishimiye,
Mr. Nsengimana, Mr. Rucubanganya, Mr. Sibomana and Ms. Uwimana and to take
appropriate measures against those responsible for the violation of their rights.
132.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on freedom of opinion and expression, for
appropriate action.
A/HRC/WGAD/2024/25
18
GE.24-09680
133.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
134.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Hagenimana, Mr. Masengesho, Mr. Mutabazi, Mr. Nahimana,
Mr. Ndayishimiye, Mr. Nsengimana, Mr. Rucubanganya, Mr. Sibomana and Ms. Uwimana
have been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to
Mr. Hagenimana, Mr. Masengesho, Mr. Mutabazi, Mr. Nahimana, Mr. Ndayishimiye,
Mr. Nsengimana, Mr. Rucubanganya, Mr. Sibomana and Ms. Uwimana;
(c)
Whether an investigation has been conducted into the violation of the nine
individuals’ rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Rwanda with its international obligations in line with
the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
135.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
136.
The Working Group requests the source and the Government to provide the
above-mentioned information within six months of the date of transmission of the present
opinion. However, the Working Group reserves the right to take its own action in follow-up
to the opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as of any failure to take action.
137.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.31
[Adopted on 26 March 2024]
31 Human Rights Council resolution 51/8, paras. 6 and 9.