The International League Against Arbitrary Detention urges the Government of Rwanda to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention 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, asking the Government of Rwanda to immediately and unconditionally release them and to accord them an enforceable right to compensation and other reparations in accordance with international law.
Read the full WGAD Opinion concerning the nine individuals (Rwanda): Opinion No. 25/2024.
ARREST AND DETENTION OF EIGHT MEMBERS OF A GOVERNMENT OPPOSITION GROUP AND A JOURNALIST
Mr. Hagenimana, Mr. Masengesho, Mr. Mutabazi, Mr. Nahimana, Mr. Ndayishimiye, Mr. Nsengimana, Mr. Rucubanganya, Mr. Sibomana, and Ms. Uwimana are all Rwandan citizens born between 1970 and 1990. All of them, except Mr. Nsengimana, are members of the Development and Liberty for All Party (DALFA-Umurinzi Party), a government opposition group. Mr. Nsengimana is a journalist and broadcasts discussions critical of the Government of Rwanda on his online television and social media channels.
In September 2021, Messrs. Hagenimana, Masengesho, Nahimana, Ndayishimiye, Rucubanganya and Sibomana and Ms. Uwimana took part in an online training on non-violent resistance for human rights and democracy. Additionally, in preparation of Ingabire Day, a day to commemorate political prisoners scheduled for 14 October 2021, Messrs. Hagenimana, Mutabazi and Nahimana and Ms. Uwimana shared a photo of themselves holding a sign related to Ingabire Day 2021 with Mr. Sibomana. Meanwhile, Mr. Nsengimana announced that he would cover Ingabire Day, and he shared on social media a video of an activist alleging arbitrarily detentions and disappearances by the Rwandan Government.
The source reported that Messrs. Hagenimana, Nahimana, Ndayishimiye, Rucubanganya, Nsengimana, and Sibomana were arrested on 13 October 2021, while Mr. Masengesho and Mr. Mutabazi were arrested on 14 October 2021. The agents of the Rwanda Investigation Bureau who made the arrests took the eight individuals into police custody in Remera, Kigali. On 28 October 2021, they were brought before Kicukiro First Instance Court in Kigali, which ordered their detention for 30 days, a decision which was renewed repeatedly at the request of the prosecutor. The individuals’ appeals were unsuccessful, and on 9 November 2021, they were transferred to Nyarugenge Prison in Mageragere Sector, Kigali City. Afterward, Kicukiro First Instance Court ordered another renewal of the detention order.
On 16 December 2021, Ms. Uwimana was arrested at her home, according to the source. On 3 January 2022, she was brought before Kicukiro First Instance Court, which ordered to keep her in detention.
On 16 March 2022, the nine individuals were charged with formation of or joining a criminal association. Additionally, Mr. Sibomana was charged with conspiracy to commit an offense against the ruling power or the President, attempting to incite unrest among the population, attacking law enforcement, and organizing an illegal demonstration or public meeting. He was also charged with spreading false information or harmful propaganda with the intent to create a hostile international opinion against the government, as well as the publication of rumors. Charges against Mr. Nsengimana included the publication of rumours. Mr. Mutabazi was charged with causing uprising or unrest among the population. The others were also charged with 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.
The source alleged that the charges against the nine individuals were brought on the basis of their attendance at the online training session, their preparation for Ingabire Day, and their statements on human rights violations in Rwanda.
The Government of Rwanda was given the opportunity to rebut the allegations made by the source, which it did on 12 January 2024.
ARRESTED WITHOUT WARRANT, NOT BROUGHT PROMPTLY BEFORE A JUDGE AND CONTINUOUSLY UNDER PRE-TRIAL DETENTION
The source argued that the nine individuals were arrested without an arrest warrant and were not informed of the reasons for their arrest. The Government replied that warrants were issued for all nine individuals by national prosecutors and that they were informed of the grounds for their arrest and the charges against them on the day of their arrests. In its further comments, the source only claimed that the Government informed the individuals about the legal basis of their arrest, and not the factual basis. The Working Group recalled that any form of detention should be issued by a competent, independent and impartial authority. Without an arrest warrant issued by such an authority, a detention is arbitrary and lacks legal basis. As such, in this case, the Working Group considered that the Government 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.
Additionally, the source asserted that the nine individuals were forcibly disappeared after their arrest, as their whereabouts remained unknown for one or two days for eight of them while Ms. Uwimana’s fate was made public only five days after her arrest. The nine individuals were also not allowed to correspond with their families during this period. In response, the Government explained the information on the nine individuals’ whereabouts were available right after their registration at the police station while their arrest was communicated publicly to the media the day after. The Working Group recalled the definition of enforced disappearance and expressed its inability to make a finding regarding the individuals’ alleged enforced disappearance and incommunicado detention because of insufficient information brought by the source.
The Working Group noted that the nine individuals were brought before a court more than two weeks after their arrest, exceeding the 48-hour limit to satisfy the requirement of bringing a detainee “promptly” before a judge or other authorized officer following their arrest. The Government replied that the post-arrest and pretrial detention periods of the individuals were conducted in accordance with the law. However, the Working Group considered that the nine individuals were not brought promptly before a judge, in violation of article 9 (3) of the Covenant.
The source further asserted that the court repeatedly renewed the detention orders for the nine individuals at the prosecutor’s request. The Working Group recalled that pretrial detention should be the exception, not the rule, and that the specific circumstances of each individual and available alternatives to detention should be considered. The Working Group found that while the Government argued that the court’s decision to extend the detention was based on strong reasons to suspect the individuals of the crimes they were charged with, the decision lacked an individualized assessment of the necessity and reasonableness of their continued detention. Thus, the Working Group found that their pretrial detention was in violation of article 9 (3) of the Covenant.
Therefore, the Working Group concluded that the arrests and detentions of these nine individuals were arbitrary under category I, as they lacked any legal basis.
DETAINED FOR EXERCISING THEIR RIGHTS TO FREEDOM OF OPINION, EXPRESSION, AND TO PEACEFUL ASSEMBLY
The source submitted that the detention of the nine individuals was due to their exercise of the rights to freedom of opinion and expression, and freedom of peaceful assembly and association. More particularly, they were detained for their criticism of the Government and their participation in the DALFA-Umurinzi Party. For the Government, the Rwandan Constitution protects the rights to freedom of opinion and expression and freedom of peaceful assembly and association, with restrictions permitted in the Covenant and Rwandan law if the exercise of these rights bear prejudice to national security or public order. In this case, it was argued that the restriction of liberty of the nine individuals was decided in respect with the principles of necessity and proportionality. Recalling that all forms of expression, including digital ones, are protected by article 19(2) of the Covenant, the Working Group considered that a training session on non-violent resistance for human rights and democracy and criticisms of the Government without calls for violence could not be reasonably regarded as threats to national security or public order. Thus, in view of the Working Group, the nine individuals were detained for exercising their 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.
The source also expressed that articles 202 and 204 of the Law Determining Offences and Penalties in General, the provisions under which the nine individuals were charged, were vague and overly broad. The Working Group highlighted that its jurisprudence contains cases in which it found Rwanda arbitrarily detained journalists and former members of the Rwandan armed forces for having exercised their right to freedom of opinion and expression, while the Human Rights Committee has also observed the vague nature of the definitions of certain offences and has expressed concern about the deterrent effect they could have on freedom of expression.
Thus, the Working Group found that the detention of the nine individuals resulted from the exercise of their rights to freedom of opinion and expression and assembly, as well as 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, rendering their detention arbitrary under category II. For these reasons, the Working Group referred the case to the Special Rapporteur on the right to freedom
of opinion and expression.
DENIED CONFIDENTIAL AND TIMELY LEGAL ASSISTANCE, AND HELD IN PRE-TRIAL DETENTION WITH CONVICTED PERSONS
Regarding the nine individuals’ right to a fair trial and due process, the source asserted that none of the individuals were given timely access to a lawyer and that they were all interrogated without legal counsel, for several days after their respective arrests. Moreover, the individuals’ conversations with their legal counsel were allegedly monitored by officials. The Government rejected these allegations, stating that all the individuals were informed of their right to be interrogated in the presence of their lawyers and were permitted access to means to contact them. Some of them reportedly waived their right to legal representation. Confidentiality was respected at all point according to the Government. The Working Group was not convinced that the nine individuals benefited from confidential legal assistance, thus, it considered that their right to have adequate time and facilities for the preparation of their defence and to communicate with a lawyer enshrined in article 14 (3) (b) of the Covenant was violated.
In response of the source’s argument that the Kicukiro First Instance Court did not have territorial jurisdiction to order the continuation of the nine individuals’ detention after their transfer to Nyarugenge Prison, the Working Group noted that its role was not of an appellate body for decisions of domestic courts and tribunals.
The Working Group also observed that it lacked sufficient information to make a conclusion regarding the source’s allegation of the use of the nine individuals’ telecommunications messages as evidence against them without proof of prior permission by the Prosecutor General to record them.
The source alleged the nine individuals were subjected to poor detention conditions, including prolonged solitary confinement for Mr. Sibomana and Mr. Nsengimana. The Government replied the nine individuals were treated with dignity. Without convincing arguments by the source that the conditions in detention impacted the right to fair trial of the individuals, the Working Group simply reminded the Government’s international obligations under article 10 of the Covenant.
Taking into consideration the continuous detention of the nine individuals for over than two years without explanation from the Government for the extensive delay, the Working Group considered the right of the nine individuals to be tried within a reasonable time and without undue delay, embodied in the right to a fair trial, had been violated.
Finally, the Working Group welcomed the submission made by the source that the nine individuals had been held with convicted persons during their pretrial detention, in violation of article 10 (2) (a) of the Covenant.
In light of the above, the Working Group found that the violations of the nine individuals’ right to a fair trial were of such gravity as to give their detention an arbitrary character, thus falling under category III.
DISCRIMINATED ON THE BASIS OF THEIR POLITICAL OPINION
The source argued that the nine individuals were targeted by the authorities because of their membership in the DALFA-Umurinzi Party and their criticism of the Government on human rights issues, their arrest and detention thus being a discrimination based on their political opinions. As the Working Group previously concluded that the nine individuals were deprived of their liberty for exercising their fundamental rights under international law, it found that the individuals were deprived of their liberty on discriminatory grounds based on their political opinion, in violation of articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant.
The Working Group found that their detention was therefore arbitrary according to category V.
CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBTRARY DETENTION
In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Hamad Hagenimana, Emmanuel Masengesho, Alphonse Mutabazi, Marcel Nahimana, Jean Claude Ndayishimiye, Theoneste Nsengimana, Alexis Rucubanganya, Sylvain Sibomana, and Claudine Uwimana, was arbitrary and fell under categories I, II, III, and V because their deprivation of liberty was 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.
The Working Group recommended that the Government of Rwanda 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. The Working Group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release them immediately and accord them an enforceable right to compensation and other reparations, in accordance with international law.
The Working Group also urged the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of the nine previously named individuals and to take appropriate measures against those responsible for the violation of their rights.
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