NKUNDA'S ATTORNEY CONTINUES TO ARGUE HIS CLIENT'S

C O N F I D E N T I A L SECTION 01 OF 02 KIGALI 000859 SIPDIS E.O. 12958: DECL: 12/16/2019 TAGS: PREL PGOV PHUM KJUS MARR CG RW SUBJECT: NKUNDA'S ATTORNEY CONTINUES TO ARGUE HIS CLIENT'S CASE REF: A. KIGALI 289 ¶B. KINSHASA 600 KIGALI 00000859 001.2 OF 002 Classified By: Ambassador W. Stuart Symington for reasons 1.4 (b) (d) ¶1. (C) SUMMARY: The Canadian defense attorney for detained CNDP leader Laurent Nkunda told Emboffs December 9 that Rwanda's Supreme Court had agreed to hold a hearing on January 13, 2010 about the legality of Nkunda's detention. The attorney claimed to have had no direct communication with Nkunda since before January 2009, and that Rwandan authorities have kept Nkunda under strict house arrest in Kigali since May. END SUMMARY. ¶2. (C) Emboffs met December 9 with attorneys Stephane Bourgon (a Canadian) and Aime Bokanga (a Rwandan),defenders of Laurent Nkunda, a renegade Congolese military officer and former leader of the Congres National Pour la Defense des Peuples (CNDP) armed group. According to Bourgon, Nkunda remains under house arrest at a villa in Gasabo (one of greater Kigali's three districts),where authorities transferred him in May. Aside from visits from his wife Elysee Maeshe Nkunda, listening to radio broadcasts, and occasional newspapers, Nkunda is cut off from contact with the outside world. Bourgon has not met with his client since Rwandan authorities detained him in January 2009. Further, he claimed, Rwandan authorities on December 2 also stopped allowing Nkunda's wife to visit him. ¶3. (C) Bourgon said the president of Rwanda's Supreme Court met with him earlier on December 9 and agreed to set a date of January 13 to hold a hearing on the legality of Nkunda's continued detention. He explained that Rwandan law required him to name a specific individual as being responsible for Nkunda's "illegal and arbitrary" detention, and that he accordingly named Rwanda's military chief, Gen. James Kabarebe. Bourgon added that in September, the military tribunal in Kigali refused to entertain the case. ¶4. (C) The Supreme Court, Bourgon explained, was the ultimate legal authority over both civilians and military in Rwanda. If it decides it does not have jurisdiction over the case, "then we'll ask who does," he added, explaining that his next step would be to file a motion with the African Court of Human Rights, based in Bujumbura, or possibly even the International Criminal Court (ICC). The African Court, he said, was not a desirable option because the process would take many months and the court itself had no ability to enforce a decision. ¶5. (C) As far as Bourgon is aware, there are only two incidents for which Nkunda faces possible charges. The first dates from 2005, when the Government of the Democratic Republic of the Congo (GDRC) filed an arrest warrant for insubordination. This warrant expired after 90 days, however, and is no longer in force. The other dates from November 2008, when troops from the Congres National pour la Defense du Peuple (CNDP) armed group in eastern DRC "committed crimes." Nkunda "may possibly be linked" to these crimes, because he was leader of the CNDP at the time. There are no outstanding charges against Nkunda in Rwanda, the DRC or in the ICC, he emphasized. (Comment: Bourgon did not allude to Nkunda's role in other incidents, such as the June 2004 attack on Bukavu or the May 2002 repression of an uprising in Kisangani. End Comment.) ¶6. (C) Bourgon acknowledged the sensitive nature of the case and said he suspected the Government of Rwanda did not want Qand said he suspected the Government of Rwanda did not want to release Nkunda because he "knew too much" about alleged Rwandan involvement in the Democratic Republic of the Congo. His attempts to contact the ministries of foreign affairs, justice, defense and the presidency about the case had gone unanswered. Rwandan military intelligence chief Gen. Jack Musemwakeli "holds the key," and Bourgon in fact called him for the first time the previous week. Musemwakeli told Bourgon to stop the judicial proceedings, and then hung up; Bourgon has tried but been unable to contact him since. According to Bourgon, Nkunda's wife says Nkunda is willing to face trial either in the DRC or by the ICC, or to go into exile (NFI),but he "does not want to stay where he is." Bourgon added that he planned to write an open letter to President Kagame this week and give it to Kinyarwanda-language newspaper "Umuseso" in the hope that the international press would pick it up. (Note: Polcouns also subsequently heard BBC Africa broadcasting a radio interview with Bourgon. End Note.) KIGALI 00000859 002.2 OF 002 ¶7. (C) BIO NOTE: Bourgon is an experienced defense attorney who for several years has won his bread by defending alleged war criminals at the International Criminal Tribunal for Yugoslavia (ICTY). With the ICTY preparing to close, Bourgon has been picking up additional clients, including former Central African Republic president Ange-Felix Patasse (in connection to the ongoing ICC trial of onetime Congolese presidential hopeful Jean-Pierre Bemba),as well as Laurent Nkunda in 2006. ¶8. (C) COMMENT: How Rwanda handles Nkunda will continue to have profound implications for the GOR's relationship with the DRC. It is also a very significant domestic political issue in Rwanda. Arresting Nkunda in January changed the political landscape in the region and in Rwanda. It permitted the GOR and DRC to focus on attacking the Rwandan genocidaire-led rebel group known as the Democratic Front for the Liberation of Rwanda (FDLR) and on integrating the CNDP and other militia forces into the FARDC. In Rwanda, Nkunda's arrest was met with general surprise, and anger in some quarters. Before his arrest, Nkunda and the CNDP had been seen by many in Rwanda (especially among Congolese refugees here) not as a war criminal but as the foe of the FDLR and the protector of Congolese Rwandaphone interests. Nkunda's "us against them" rhetoric, his advance on Goma last October, and his calls to replace President Kabila ran directly counter to Rwanda's efforts to cement a partnership with the DRC that would be effective against the FDLR and contribute to regional stability and growth. The GOR is likely to face growing pressure to try or release Nkunda, but it does not appear to have a better option than sustaining his current detention. Handing him over to the DRC for trial would trigger strong internal criticism in Rwanda. Releasing him to return to the Kivus would inject new insecurity there and undermine fatally GOR-DRC cooperation. Sending him abroad would not ensure against an immediate return to the Kivus. At a minimum, this legal process is not likely to be resolved quickly. END COMMENT SYMINGTON