Lawyer faults ICTR in Kabuga case

December 5, 2008 12:00 am

, NAIROBI, Kenya – A lawyer representing a woman who is claiming ownership of property linked to Rwandan fugitive Felicien Kabuga now says the International Criminal Tribunal for Rwanda (ICTR) based in Arusha has no jurisdiction over his client.

Lawyer Ken Ogeto told Justice Muga Apondi that Josephine Mukazitoni who is challenging seizure of the multi-million shilling block of flats in Nairobi (allegedly co-owned with Kabuga) is neither a suspect nor is she wanted by the Tribunal.

Mr Ogeto claimed that the ICTR was blackmailing Kenya because it had no mandate to force States into arresting individuals on its behalf.

He also claimed that the reliance by Kenya’s Attorney General on the tribunal’s statutes was misguided because the laws governing it had not been domesticated as required, before adoption.

“Whereas the AG relies on these statutes, there is no evidence that they have been domesticated by the Kenyan Parliament as part of the laws of the country.  There is no evidence that the United Nations resolutions relied upon by the AG have been domesticated,” he told the court.

He said the reliance on the statutes and the UN resolutions had no legal grounding and that the court could not act on their basis.

In May this year the High Court temporarily seized Spanish Villas on Lenana Road in Nairobi, following claims that the multi-million property was co-owned by Kabuga and Mukazitoni.

Mr Kabuga, who has been on the run for over a decade, is wanted for allegedly masterminding the 1994 Rwanda genocide that left an estimated 800,000 people dead.

While making an application for non-interference with the property, the Director of Public Prosecutions (DPP) Keriako Tobiko said proceeds from the villas were aiding Mr Kabuga evade justice.

But Mr Ogeto argues that the court should not be party to ‘arm-twisting’ of the government by the ICTR since the High Court of Kenya ‘is not an investigative arm of the tribunal.’

Citing Article 23 of the ICTR statutes, Mr Ogeto said the tribunal’s mandate was limited to convicted persons, against whom it could only impose life imprisonment.

He stated that the only time the tribunal was committed to deal with an accused person’s property was at the end of a trial, and only after the said accused person was convicted.

“The first and second respondents (Kabuga and Mukazitoni respectively) have not been convicted because of the presumption of innocence so her property cannot be dealt with adversely before conviction,” he argued.

The lawyer insisted that, as per the statutes, the tribunal could only deal with property of a convicted person, or when the property had been acquired through criminal means.

“The only order that ICTR can make in relation to the property is its return to a rightful owner.  In the present case, there is no indication that the property is in dispute or was acquired by criminal conduct,” the lawyer said adding that the AG’s move was not intended to restore the villa to any alleged owner.

“My lord, the AG is asking you to grant orders that the ICTR itself cannot grant,” he said.

The lawyer told the court that granting permanent seizure of the property as sought by the AG would be a violation of the constitutional ideals of the right to property because the State had failed to demonstrate why Mrs Mukazitoni’s right to property, as enshrined in the constitution should be interfered with.

The DPP is expected to respond to these arguments on Thursday when the case resumes.



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