NKUNDA LOSES FIRST ROUND IN COURT

C O N F I D E N T I A L KIGALI 000163 SIPDIS E.O. 12958: DECL: 03/12/2019 TAGS: KCRM KJUS PGOV PHUM PREL SUBJECT: NKUNDA LOSES FIRST ROUND IN COURT REF: KGALI 086 Classified By: CDA Sim for reasons 1.4 (b) (d) ¶1. (C) On March 11, a Rwandan Higher Instance court denied an application for release of detained renegade Congolese General Laurent Nkunda, ruling on procedural grounds that the court could not accept the case, and noting that the application had been addressed to the wrong individual representative of the government (the Minister of Justice). Stephane Bourgon, a Canadian lawyer and head of Nkunda's legal team, told pol/econ chief immediately after the hearing that the judge had also ruled that Nkunda's lawyers bore the burden of proof in establishing exactly where and by whom Nkunda was detained. Bourgon found this ruling particularly perplexing, he said, given the Government of Rwanda's (GOR) admission in several public fora that Nkunda was indeed in Rwandan hands. ¶2. (C) Bourgon said his team would "assess" the ruling, and likely file an amended application as soon as March 12; an appeal to a higher court was also possible. Bourgon considered Nkunda, not subject as far as he was aware to any arrest warrant, nor charged with any crime in Rwanda, to be illegally detained. (Note: Rwandan criminal procedure requires the government to bring a detained individual before a court within 10 days). He noted he had not yet been allowed to visit his client, nor had other members of his team. If his team was successful, one "very likely scenario" would be a quick trip to the border and the handing over of his client by the Rwandans to the Congolese -- not quite the result his team sought. "That's one more reason why I need to meet with my client," he said. ¶3. (C) The GOR has held Nkunda in Gisenyi since January 22, and incommunicado in recent weeks, after initially allowing visits from his wife and telephone communications with friends and family members. The Minister of Justice told us March 12 that his Ministry had received a formal extradition request from the Congolese government. He said that "once we get beyond the procedural arguments," the GOR had valid reasons for holding Nkunda -- one being the outstanding extradition request, and the other being the nature of Nkunda's arrest/capture during military operations. "We have the right to hold him in such circumstances," he said. The Rwandan and Congolese governments announced in February that a six-person technical team would examine the modalities of Nkunda's return (reftel). This body has reportedly met once, with the GOR having appointed representatives from the Ministries of Defense and Justice and from the security services. ¶4. (C) Comment. Nkunda's detention was both a political and security decision taken in the early stages of the joint military operation events in January. The Rwandan and Congolese governments at that time moved rapidly to eliminate the obstacles posed by Nkunda to the conduct of the joint operation and to integrate his CNDP militia forces into the Congolese army (FARDC). Rwanda's decision to detain Nkunda was met with some internal dissent among some of President Kagame's closest advisors. Now the detention must be defended legally, while the two governments reach for a mutually defensible decision on his ultimate Qreach for a mutually defensible decision on his ultimate status. Given the outstanding extradition request, should the Rwandans acknowledge the applicability of one of two extradition treaties made by previous governments, then a separate legal proceeding would presumably commence in Rwandan courts. The process could be quite lengthy, given the tendency here for courts to hear matters episodically. End comment. SIM