The Netherlands and the UK: The Witteveen Reports and their contradictory results

The Netherlands

When the genocide started, the Netherlands did not even have an Embassy in Kigali. But when Minister Jan Pronk had seen the situation on the ground in 1994, he decided to help Rwanda overcome the disaster with development aid, focusing especially on the justice sector (Pronk 2018).

The political relations between the two countries became somewhat strained when Victoire Ingabire Umuhoza, a Hutu woman living in the Netherlands, went to Rwanda to run as a contender against Paul Kagame in the 2010 presidential election. She was arrested for genocide denial and for complicity in financing the FDLR (Forces democratiques de la liberation du Rwanda), which the Rwandan government considered a terrorist group. She was sentenced to 15 years imprisonment. Ingabire chairs a Rwandan opposition party from her prison cell in Kigali.

So far, the Netherlands has adjudicated two genocide cases. Joseph Mpambara was sentenced to life imprisonment. Yvonne Basebya was sentenced to 6 years imprisonment for inciting genocide. In 2016, Jean Claude Iyamuremye and Jean Baptiste Mugimba were extradited to Rwanda.

The Witteveen Reports⁴

Martin Witteveen is a senior Dutch prosecutor, who was an investigative judge (Rechter Commissaris) during the appeal phase of the Joseph Mpambara case and during the full investigation of Yvonne Basebya. During those cases, he heard from 72 witnesses in Rwanda and elsewhere. Initially, he was positive about the professionalism and the cooperation of the Rwandan judicial authorities.

In 2014, the Dutch government commissioned him to assist the NPPA in strengthening the capacity of the Genocide Fugitive Tracking Unit (GFTU), which is responsible for all phases of these cases (Witteveen 2014a).

His reports about the legal quality of the genocide trials in Rwanda became pivotal in two recent extradition cases: one in the Netherlands and one in the UK. Witteveen combined his observations with the notes of a Dutch Embassy monitoring assistant to offer a first-hand analysis of the processes in the courtroom. This monitoring assistant noticed that the judges found it hard to preside over the courtroom interactions that were dominated by NPPA prosecutors.

The quality of the defence was miserable. Advocates fought with the Ministry of Justice about their fees. Witteveen's most penetrating observation was that the defence lawyers did not argue against the prosecutors and did not critically interrogate or cross-examine the witnesses for the prosecution. They conducted no investigations themselves. They also did not present counter-evidence or defence witnesses.

Witteveen concluded that from the perspective of the suspects, Rwanda did not manage to conduct fair trials. He recommended that extraditing countries should provide and fund an experienced defence lawyer who would assist his Rwandan colleague in realising equality of arms vis-a-vis the prosecution.

In November 2015, a Dutch District Court refused to allow the extradition of Iyamuremye and Mugimba based on Witteveen's report.⁵ In the appeal before the High Court in the Hague, the Dutch government lawyers argued that the two would face a fair trial in Rwanda. A journalist confronted a prosecutor in the case with the findings of Witteveen's report. The prosecutor's clumsy answer was that it was Witteveen's personal opinion since he was not a member of the Dutch Prosecution while he was in Rwanda. In July 2016, the High Court in the Hague allowed the extradition⁶ and did not follow Witteveen's analysis.

The UK

In the appeal case in July 2017 before the High Court in London, Rwanda v. Nteziryayo and others, Witteveen became a “crown witness.”⁷ In 2007 there had been an earlier attempt to extradite four of the accused. The accused won their initial appeal in 2009 before the Divisional Court, which decided that “they would be at real risk of a flagrant denial of justice.”

The Rwandan government made a second extradition request on 2 April 2013, arguing that the quality of its legal system had improved considerably (“a sea change”) in the meantime. It changed the tenure of judges from a life-term to a determinate term of office, renewable by the High Council of the Judiciary. A November 2011 law now permitted the Chief Justice to request judges from abroad to come and sit with Rwandan judges.

Two experts from the GoR were cross-examined before the High Court: Dr Phil Clark, a political scientist from the UK and Martin Witteveen. Professors Philip Reyntjens and Timothy Longman testified on behalf of the accused. They were both staunch critics of the GoR, no longer allowed to enter Rwanda (Reyntjens 2009).

Gerald Gahima gave a broad overview of the political situation in Rwanda. He was a former top authority in the Rwandan justice sector that left the country in 2003 and became one of the critics of the regime (Gahima 2013). In his testimony, he observed that a large number of judges, including the majority in the most senior courts, were active RPF- members. He also informed the court that on many occasions, President Kagame and security service personnel had overruled judiciary decisions and removed judges for failing to toe the line.

The High Court was convinced of the neutrality of Witteveen's testimony. Unlike Clark, he was a lawyer.

The High Court was impressed by Witteveen's honesty, that he was willing to admit he had changed his mind. His initial point of departure was that extradition should be admissible. But after his observations in Rwandan courtrooms, he concluded that the existing court practice showed serious shortcomings, especially the quality of the defence.

Witteveen had his finest moment when the High Court concluded: “The courts expect clarity, reason and moral courage in an expert witness. It appears to us that Witteveen has shown those qualities here, responding to his growing acquaintance with the facts and his developing understanding of the true problems facing defendants in Rwanda in such a case.”⁹

The High Court observed that after the delivery of his last two reports, the GoR treated Witteveen as a hostile witness. Witteveen had told the court that he was advised not to go back to Rwanda because his safety was not guaranteed.

On 28 July 2017, the High Court affirmed the decision of the District Court and denied the request for extradition. But the High Court was prepared to permit the GoR a final opportunity to assure the Court that credible and verifiable conditions would be in place to overcome the legal bar to extradition. The High Court set forth the following conditions for extradition: (1) the GoR would provide adequate funding for qualified defence lawyers, (2) the Rwandan Bar Association would admit foreign lawyers as defence counsel, and (3) the trials would include at least one non-Rwandan judge.

When the GoR did not answer within the High Court's three- week deadline, the five suspects were released. Because the Rwandan Prosecutor General was not willing to cooperate with the UK authorities, prosecution in the UK was impossible. The suspects will probably remain at large for good. A third procedure for their extradition seems very unlikely.