1. Identification of the victim

Dr Christopher Mpozayo of Rwandan nationality, an employee of East African Legislative Assembly (Arusha Tanzania). The High Court of Kigali convicted him for a so-called crime of knowingly spreading rumours aiming at inciting the population against the established government and attempt to cause insurrection and ordered his imprisonment of 10 years  and for now,  he is incarcerated in Gicumbi prison (Northern province – Rwanda).

For further information, contact his relatives : Mr Fidel Mulindahabi, on +250788455392, email:mulifide@gmail.com

  1. Specific articles of the Universal Declaration of Human Rights that have been violated

Article 5: No one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment.(Art. 14 of Rwandan constitution).

Nevertheless, on 8th November 2013 , around 4:00 PM at Gikondo Special Intelligence Headquarters,  he was been beaten by the head of the police accusing him of being an enemy of the country, and handcuffed 24/24 hours for 18 days ( from 8th to 25th November 2013).

 Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. (Art.15 of Rwandan Constitution).

Nevertheless, at police stations (Gikondo “chez Gacinya” and Remera), he has been detained alone in an isolated area deprived of all family visits. This particular treatment was also repeated during his second arrest.

Article 9: No one shall be subjected to arbitrary arrest, detention or exile.(Art. 24 of Rwandan constitution).

Nevertheless, on 8th November 2013 and on 2nd April 2014 up to now, he has been arrested and detained irrespective national laws regarding preliminary investigation procedures and without any charge against him as determined by laws.

Article 10: Everyone is entitled in full equality to fair and public hearing by an independent and impartial tribunal in the determination of his/her rights and obligations and of any criminal charges against him. (Art. 29 (3) of Rwandan constitution).

Nevertheless, on 15/04/2014 he has been taken to Nyarugenge intermediate court for provisional detention while no case file was registered in court and without being summoned lawfully. The court decision was unfair and was appealed in High court of Kigali which unfairly ordered his remained provisional detention on the basis of the arrest warrant order by the prosecutor.

Article 11(2): No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence under national or international law at the time it was committed. (Art. 29 (4) of Rwandan constitution).

However, he has been arrested and imprisoned on the basis of Skype chat between two individuals framed as offences of inciting insurrections amongst the population and defamation and insults in private area against the Head of State while chat on Skype doesn’t constitute an offence in national and international laws.

Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the rights to protection of the law against such interference and attacks. (Art. 23 of Rwandan constitution).

But on 8th November 2013 around 4:30 am, the police conducted an unlawful search in his lodge and took his laptop without any local authority, checked all laptop’s files and communication soft wares including Skype, yahoo messenger and so on, without a written authorization issued by a national prosecutor mandated by the Minister in charge of justice as prescribed by law.

Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas though any media and regardless of frontiers. (Art. 37 of Rwandan constitution).

Nevertheless, he has been accused of communicating with his friend through a written skype chat. Even if this accusation doesn’t constitute a criminal action, it is also against the right of freedom of speech and expression.

 

III. Facts

  1. A) Arbitrary arrest, detention and imprisonment for the first time.

As an employee of East African legislative Assembly , in October 2013 Mpozayo went to Bujumbura- Burundi to facilitate the plenary meeting,  on  30th October 2013 after the meeting, he came to Kigali- Rwanda especially in Belgium embassy to look for an entry visa to Sweden as he had a training with Swedish civil contingency agency (MSB) in Kristenhamn (from 16-20 November 2013). He slept in a lodge belonging to Mr Rutiyomba Jovit in kimironko sector where he was supposed to come back to Arusha on 8th November 2013 by air at 1:45 pm.

Friday 8th November 2013, the same day he planned to fly to Arusha, around 4:30 am, four policemen from CID led by superintendent Innocent Hodari Rwanyindo came to his lodge to conduct a search without a search warrant order issued by the prosecutor and without the presence of any local authority as it is prescribed by law.

They seized his laptop and travel documents and took him to Gikondo at special intelligence headquarters (commonly known as “chez Gacinya”), without any warrant to appear, any warrant to bring by force, nor an arrest warrant issued by the prosecutor as it is prescribed by law.

Without informing him the reasons of his arrest and charges against him, they detained him manacled at Gikondo( chez Gacinya).

Around 4:00 pm they took him to the office of Muhizi the head of special intelligence, to meet the inspector general of police (IGP) Gasana Emmanuel. The IGP Gasana ordered him to take aside his shoes and to sit down on the floor. The first question he asked: why are you enemy of the country? What is your educational background? Did government support your education? After trying to respond to the questions , he started to kick him many times while Mpozayo screamed crying out for mercy. After a few minutes he stopped to beat him and went back.

Around 5:30 PM the policeman took him to another room where many police officers were sit including senior superintendent E. Bugingo and superintendent Innocent Hodari Rwanyindo and started to ask him why he hates HE President Paul Kagame and why he has correspondence with opponents to the government. Around 8:00 pm they took him to his custody erea where he passed night being handcuffed.

On 9th November 2013 around 7:00 am, a group of policemen led by superintendent Innocent Hodari Rwanyindo and superintendent Modest Mbabazi took him back to his lodge in Kimironko for a second search. The lodge was occupied by a new guest as Mpozayo was supposed to check out on 8th November 2013 at 11:00 am .

The new guest of the lodge was a lady called Janet Furaha living in Arusha Tanzania for business. She opened them the door and they started to carry out the search in two groups. After 10 minutes a group operating with superintendent Innocent Hodari Rwanyindo told to other group led by superintendent Modest Mbabazi that they found a stick grenade in a caustra of one of the rooms. They made a statement that a firearm found was belonging to Mpozayo without tangible evidences as he was not slept in the lodge that night.

The policemen took  him back to Gikondo (chez Gacinya) and detained him there in custody. Around 4:00pm superintendent Modeste Mbabazi made a statement of arrest and detention accusing him of conspiracy against the established government or the President of the Republic , discrimination and illegal possession of arm on the basis of the printed Skype chat of Munyampeta and chrimp70 saying that the chat was found in Mpozayo’s laptop.

On 11th November 2013 around 9:30 AM, they brought him to Kicukiro police station and put him in detention. Around  2:00 PM superintendent Innocent Hodari Rwanyindo came back to ask him information about his relatives (residence, birth dates, educational background and occupation). And then around 4:00 PM they took him to the prosecutor of the primary court of kacyiru for investigation. The prosecutor Nkeshimana Janvier issued an arrest warrant and ordered his detention in Remera police station where he was detained alone handcuffed in an isolated erea deprived of any family visit.

The same date around 11:00PM superintendent Innocent Hodari Rwanyindo and the boss of kicukiro police station accompanied by a police agent Kanimba took him to the police head office to meet the deputy inspector general of police Dan Munyuza.

DIGP Dan Munyuza asked him why he is an enemy of the country, then asked him how he knew Jean Damascene Munyampeta who is in opposition party PDP Imanzi and living in Belgium and how he knew Furaha Dieudonne a business man living in Maputo Mozambique. After 30 minutes they took him back to his detention erea in Remera police station.

On 18th November 2013, the prosecutor Nkeshimana Janvier brought him before the primary court of Kacyiru for a provisional detention of 30 days. He told the court that Mpozayo is pursued for his written chats on Skype and yahoo messenger with his friends including Munyampeta Jean Damascene  and Furaha Dieudonnee , and therefore he is prosecuted for the offences of conspiracy against the established government or the President of the Republic, defamation and insults in private area against the President of the Republic and illegal possession of arm.

On 20th November 2013, the primary court of Kacyiru found no grounds and tangible evidences to suspect him for offence of conspiracy against the established government or the President of the Republic, but ordered a provisional detention of 30 days in Gasabo prison for two offences remained while according to the law the suspect for offences under 2 years of punishment cannot be imprisonned  and therefore the court decision was against law ( art 96 of Rwandan law no 30/2013 of 24/05/2013 relating to the criminal procedures) as the punishment proposed for the two offences remained is under two years.

On 25th March 2014, the principal trial RP1184/13/tb/kcy was heard in primary court of Kacyiru and on 31/03/2014 the court ruled that he is not convicted for the offence of illegal possession of arm and dismissed the allegations concerning defamation and insults in private area due to unlawfull procedure to filing a case (according to art 291CP, there was no victim claiming) and therefore the court ordered his immediate release and  a restitution of the affairs seized. The court decision was not appealed and was become definitive.

  1. B) Arbitrary arrest, detention and imprisonment for the second time.

On 2nd April 2014, around 9:00 am , he was released from Gasabo prison but unfortunately after 30 minutes he was rearrested in Kimironko sector(same place of the first arrest ) by the policemen CIP Prosper Ruzayire, CIP Iyaremye and IP Felician Gasirabo led by senior superintendent Rurangwa on the warrant to bring by force order issued by the prosecutor Boniface Budengeri of the intermediate court of Gasabo , accusing him ofinciting insurrections amongst the population on the basis of the same Skype chat he was accused for in primary court of Kacyiru.

Instead of taking him to the prosecutor who issued the warrant to bring by force as it is prescribed by law, they brought him to Remera police station, made an interrogatory statement, and then put him in detention unlawfully as the preliminary investigation cannot be conducted twice for the same things already tried by the court.

The judicial police went further in violating laws by taking him to the prosecutor Ndibwami Rugambwa of the intermediate court of Nyarugenge who after what, issued an arrest warrant order RONPJ 05361/S3/14/NR and ordered his detention in Nyamirambo police station. On 15/4/2014 he brought him before the incompetent court of Nyarugenge on “mandat d’extraction” instead of court surmon, because according to the place he was rearrested from, the competent court was the primary court of Kacyiru. The Nyarugenge intermediate court heard the parties on provisional detention of 30 days without summoning the suspect and without recording the file suit by the prosecutor, this is evidenced by the court orders of 16/04/2014 and of 19/05/2014 which are not bearing the registration court number ordinarily issued by the clerk office after receiving a claim or a file suit.

According to the article 28 of the law establishing Rwanda correctional services, a court ruling without number cannot put a detainee in prison and this means that the whole period of detention (16/04/2014 to 08/04/2015, the date of the judgment delivery of the principal trial) he was unlawfully imprisoned. The high court in order to justify those mistakes, had attributed the number assigned to the arrest warrant order by the prosecutor RONPJ 05361/S3/14/NR to two different court decisions taken at different dates in its judgment RP0019/14/hc/kig & RPA0440/14/hc/kig of 14/11/2014.

In this chain of knowingly violating laws, the court provisional decision has been appealed to High Court , but in its judgment of 06/05/2014, the court took an unfair decision RPA 0305/14/hc/kig and ruled that the accused must remain in prison on the arrest warrant order by the prosecutor while its validity period is only 5 days non renewable.

On 7th July 2014 he filed a reference  in East African Court of Justice (ref 10/2014/eacj) claiming for his unlawful arrest, detention, and imprisonment, no respect of rule of law principle and therefore an infringement of the EAC Treaty. The court has summoned the applicant more than three times, but he was not allowed to attend the hearing and no advocate in Rwanda  was interested to represent him .

As the government agents were not happy of this case file, on 24/09/2014, the Nyarugenge prison management (the Director of prison Mugisha James and Ndayambaje Fabrice, the intelligence officer) seized and confiscated all his court documents including those related to his case file in high court of Kigali and in East African Court of Justice, refused him access to his lawyers/advocates. In order to affect him psychologically, on 10th February 2015 around 5:00pm, he has been shifted to Gicumbi prison (at more than 150km from the headquarters of the court) while he prepared his defense of 11th February 2015 in high court of Kigali.

  1. C) The unfair trials

As said above, an appeal was instituted against the unfair decision of 16/04/2014 taken by an incompetent court for the accusations already tried by the court and where a decision was taken, on the basis of an unlawful preliminary investigation procedure, but unfortunately the appealed court in its decision RPA0305/14/hc/kig of 06/05/2014 affirmed that the previous court was competent and that the case brought before the court was groundless, by ignoring laws related to territorial competence and those related to criminal investigation procedure (art.117 OFCJ and art.99CPP), and therefore ordered that Mpozayo must remain in prison on an arrest warrant order RONPJ 05361/S3/14/NR of 08/04/2014 (because the appealed judgment was not bearing the court registration number).

The unfair judgment of 19/05/2014 (also without a court registration number) extending the provisional detention for 30 days , was also appealed in high court of Kigali and the case was registered on  RPA0440/14/hc/kig but the court clerk has unlawfully connected this case to another case RP0019/14/hc/kig filed in high court in order to request the court to release the detainee as he was imprisoned on the judgments without court number taken by an incompetent court on an unlawful criminal investigation procedure and on the accusations already tried by another court.

On 14/11/2014, the high court in its judgment RP0019/14/hc/kig & RPA0440/14/hc/kig ruled that” the fact that the accused has been arrested, detained and interrogated by the judicial police officer instead of the prosecutor who issued the warrant to bring by force order, this is an unlawful procedure constituting  an irregular substance”. The court also decided that the judgments made by the intermediate court of Nyarugenge must bear the same number RONPJ05361/S3/14/NR as the prosecutor’s file suit was still under investigation, and ordered that he must remain in prison in accordance with article 105 of Rwandan law relating to criminal investigation procedure, despite that he was illegally detained. This decision was appealed in Supreme Court and by order RPA0059/14/CS of 27/12/2014 the High Court decision was upheld.

On 11th February 2015 the High Court started to hear the principal trial RP0017/14/hc/kig on its merit for the case filed on 12/06/2014, on the objection raised by the accused that he is pursued twice for the same things (no bis in idem principle). On 18/02/2015, the court dismissed  the exception raised by the accused but affirmed that even if the charges against the suspect are different, they are based on the same facts tried by the primary court of Kacyiru.

On 27/02/2015 the court continued to hear the parties. The prosecutor agreed and affirmed before the court that he made a mistake in filing a case in primary court of Kacyiru on the basis of Skype chat content saying that this chat was in private area, but after a deep analysis he realized that Skype is a social network and this clearly demonstrates that the chat was spread to public. In addition, the prosecutor recognized that he made mistakes in his indictment and requested the court to correct it especially where he requested the court to punish the accused for a crime of murder and to confiscate the knife utilized, ignoring that his request is against laws.

The prosecutor told also the court that his accusations are based on the written communication on Skype between two individuals, and according to prosecution, the content was aiming at inciting insurrection amongst the population, and this crime is foreseen by the article 463 of penal code.

The accused told the court that according to national and international laws, a written chat between two individuals doesn’t constitute an offence punishable by law. He explained to the court that the Skype chat which is a key evidence was produced through unlawful Skype interception communication, and that the investigation procedure by both the judicial police and the prosecutor was unlawful.

On 08/04/2015 the high court pronounced its judgment. After putting aside national and international laws, the court convicted the accused for non-existent crime in Rwandan law saying that the accused is convicted of crime of “knowingly spreading romours aimed at inciting the population against the established government and attempt to cause insurrection with intention to cause trouble amongst the population“. This crime doesn’t exist in Rwandan penal code and it doesn’t reflect the content of the accusations by the prosecution.

The court decision was purely unfair and didn’t respect substantial principles of criminal cases as it was based on evidences unlawfully produced carried out and completed with no respect of laws.

The judge recognized himself that a Skype chat between two individuals cannot reach the public but in contradiction, he made a judgment that the Skype chat was inciting insurrection amongst the population.

This court decision was also in contradiction with another definitive court decision  RP1184/13/tb/kcy taken by the primary court of Kacyiru, as it ordered the confiscation of his laptop previously granted to him by another court decision said above.

This unfair court ruling was appealed to the Supreme Court since 20/04/2015 but until now any hearing date is fixed, and there is almost three years ago since the victim is jailed.