Léon Mugesera: A Convicted Genocidaire Seeking Justice before the African Court on Human and Peoples’ Rights?
This Article discusses the Léon Mugesera v. Republic of Rwanda judgment issued by the African Court on Human and Peoples’ Rights (ACtHPR), in November 2020, concerning Léon Mugesera, a convicted genocidaire from Rwanda. In 2016, Mugesera was convicted by the Rwandan courts of incitement to genocide and sentenced to life in prison for giving the infamous Mugesera speech, an inflammatory anti-Tutsi speech which was broadcasted on public radio in November 1993, a few months before the outbreak of the genocide in Rwanda. He appealed the Rwandan decision in the Court of Appeal and also resorted to the ACtHPR alleging violations of the right to a fair trial, the right to the respect of the human dignity, the right to his physical and mental integrity, and the right to family under the African Charter on Human and Peoples’ Rights (ACHPR). A few months before the ACtHPR issued its judgment, the Rwandan Court of Appeal found Mugesera guilty of inciting ethnic hatred and persecution as a crime against humanity, among other crimes, and upheld the life sentence imposed on him.
The ACtHPR’s Mugesera judgment is of particular interest for three reasons. First, Léon Mugesera is the second case, following Ingabire Victoire Umuhoza v. Republic of Rwanda, in which the ACtHPR has found that Rwanda violated the ACHPR. Both cases involved aspects of Rwanda’s genocidal past. Second, Rwanda did not appear before the ACtHPR to defend itself and the Court had to address the difficulties posed by the respondent state’s absence with regard to deciding the merits of the case. Third, the ACtHPR awarded the applicant a considerable amount of money for pecuniary reparations, bringing to the fore the question of whether one’s prior conviction to inciting ethnic hatred and persecution as a crime against humanity could, or should, preclude such compensation.
This Article starts off with discussing the personal jurisdiction of the ACtHPR and it subsequently turns to explain the merits of the complaints raised by the applicant. The analysis proceeds to critically reflect upon the ACtHPR’s approach with regard to cases of non-appearance of the respondent state and awarding reparation for moral damages.
II. Personal Jurisdiction of the ACtHPR
On the matter of jurisdiction, and given Rwanda’s 2016 withdrawal of its declaration accepting the jurisdiction of the ACtHPR to receive applications from individuals and NGOs (i.e., withdrawal from personal jurisdiction), the ACtHPR had to ascertain whether it enjoyed personal jurisdiction in the Mugesera case. Similar to Ingabire Victoire Umuhoza, the ACtHPR confirmed that the effects of the declaration would only take place one year after the withdrawal. In Mugesera, the application was filed one day before said declaration took effect and, thus, the ACtHPR proceeded with adjudicating the case. Following Rwanda’s example, three state parties to the ACHPR (Tanzania, Benin, and Côte d’Ivoire) have withdrawn their optional declarations accepting the jurisdiction of the ACtHPR to receive applications from individuals and NGOs, marking an unfortunate landmark in the ACtHPR’s history.
Turning to the merits of the applicant’s complaints, the discussion below engages with Mugesera’s claims and the respective findings by the Court pertaining to the alleged violation of four rights under the ACHPR, namely the right to a fair trial, the right not to be submitted to cruel, inhuman and degrading treatment, the right to physical and mental integrity, and the right to family life.
III. The Right to a Fair Trial
a. Right to defense
The applicant complained of a failure to stand trial in a language of his choice in violation of his right to defense under Article 7(1)(a) of the ACHPR. He submitted that, although French is one of Rwanda’s three official languages, the trial was held in Kinyarwanda, a language that his counsel did not speak. This claim was dismissed since he did not demonstrate that translation had been requested and since a member of the applicant’s team of counsel was a Rwandan national.
b. Right to legal aid
With respect to the applicant’s claim that his right to legal aid was breached, the ACtHPR held that the interests of justice did not require free legal assistance in this instance. The applicant may have been accused of a serious crime (genocide) which is threatened by life imprisonment, but the ACtHPR found that the applicant did not provide evidence proving his claim that he lacked the financial means to afford a lawyer of his choice. The Court highlighted that the applicant used the services of not only a lawyer from Rwanda but also two lawyers of foreign origin, which demonstrated that he was able to be represented by a lawyer of his choice.
c. Right to be heard by an independent and an impartial court
Mugesera’s complaint concerning the right to be heard by an independent and impartial court deserves more discussion. The applicant complained that the High Court Chamber for International Crimes was neither independent nor impartial, as per the requirements of Articles 7(1)(d) and 26 of the ACHPR. He alleged that one of the members sitting in the High Court Chamber was replaced by a new judge, two years after the beginning of the trial and after which most of the evidence had already been presented. The applicant further argued that this replacement was due to political interference. In support of his claims, he referenced a statement by the former Minister of Justice that the applicant would not enjoy a fair trial and he cited reports by intergovernmental and non-governmental organizations raising concerns on the independence and impartiality of the Rwandan judiciary. The ACtHPR found that the submissions lacked substantiation. The replacement of a judge did not in itself constitute a violation of the independence or impartiality of a court. Moreover, the reports referenced provided general assessments about the Rwandan courts without establishing concrete evidence to the specific circumstances of the applicant’s trial.
The ACtHPR’s analysis leaves much to be desired. First, the ACtHPR did not seem to duly appreciate the authoritative material by intergovernmental and non-governmental organizations testifying to the lack of independence of the judiciary, including the Office of the UN High Commissioner for Human Rights, the UN Human Rights Council, the UN Human Rights Committee, and Human Rights Watch. Second, the replacement of the judge, in addition to the statement by a high-ranking member of the government, along with the international reports casting doubt on the independence guarantees of the judiciary, raise strong arguments in favor of the applicant’s claims. The ACtHPR should have discussed these issues in a more detailed fashion. Third, as Judge Ben Achour stressed in his Dissenting Opinion, the ACtHPR failed to examine the question of whether the previously mentioned circumstances created the appearance of partiality and dependence in the eyes of the defendant and of an objective observer. Admittedly, the ACtHPR’s task to assess this allegation is also difficult given the absence of the respondent State from the proceedings which could have shed more light into the circumstances. However, the difficulties encountered by the Court when discharging its tasks cannot come at the expense of the protection of the applicant’s rights. It should not go unnoticed that, given the presumption of independence of courts, an individual is at a great disadvantage when having to furnish sufficient evidence that a court lacks impartiality and/or independence in the specific circumstances.
Nonetheless, the ACtHPR did find that certain allegations under the right to a fair trial were substantiated. The applicant submitted that he was not fully informed of the charges brought against him. The public prosecutor declined to provide him with the information necessary to prepare his defense and the High Court Chamber for International Crimes refused to hear his arguments and evidence. The ACtHPR found that these allegations were proven by the applicant’s letter addressed to the Attorney General, in which he highlighted the difficulties he faced in preparing his defense. A breach of the right to defense (Article 7(1)(a) of the ACHPR) was declared, even though it is not entirely clear from the ACtHPR’s reasoning how this letter proved said allegations. The remainder of the applicant’s claims concerned his conditions of detention. The complaints pertained to the prohibition of torture, cruel, inhuman and degrading treatment, the right to physical and mental integrity, and the right to family.
IV. The Right Not to be Submitted to Cruel, Inhuman, and Degrading Treatment
The ACtHPR held that Rwanda violated Article 5 of the ACHPR concerning human dignity. Although the ACtHPR dismissed some of the applicant’s claims as being unfounded, it accepted other claims regarding death threats by prison officials, deprivation of adequate food, and deprivation of communication with his family and lawyers.
The burden of proof was allocated as follows: The applicant needed to provide prima facie evidence in support of his allegations and, if he did, the burden of proof would shift to the respondent state. The ACtHPR accepted a series of letters that the applicant had sent to relevant state authorities complaining of his circumstances as prima facie evidence reversing the burden of proof. In light of the fact that the applicant was in the power of the state (i.e., in prison), making it difficult to procure additional evidence, the ACtHPR found that, in the absence of contrary information, the allegations were well-founded. Death threats against prisoners by prison officials are a violation of the right to dignity. Furthermore, the ACtHPR stressed the demoralization and deterioration of the applicant’s physical and mental condition. Factors that were taken into consideration were the deprivation of adequate food, limited access to a doctor and medication, the difficulties in establishing contact with his family and his counsel, as well as the fact that the applicant was ill and elderly. The emphasis on the demoralization and the mental state of the applicant highlights the psychological aspect of integrity and human dignity. However, the ACtHPR could have been more forthcoming with explaining how the forms of ill-treatment that the applicant was subjected to were legally qualified in connection to the prohibited practices under Article 5 of the ACHPR. The ACtHPR made no clear distinction in its analysis regarding the different levels of suffering attached to torture, cruel, inhumane, or degrading treatment. The ACtHPR left equally unclear the evidence required for the threshold of the prohibited practices under Article 5 to be met.
V. The Right to Physical and Mental Integrity
The applicant also alleged that the detention conditions described above also violated Article 4 of the ACHPR on the right to physical and mental integrity. Deprivation of adequate food, poor sleeping conditions, detention in solitary confinement, and lack of adequate medical care and psychiatric examination were not attuned to the state’s obligation to provide a dignified life for prisoners, especially in light of the applicant’s advanced age and poor state of health, as evidenced by medical reports.
VI. The Right to Family Life
Finally, the ACtHPR found a violation of the right to family under Article 18(1) of the ACHPR on account of the failure of the prison authorities to comply with the facilities offered to the applicant to communicate with his family. This allegation was, once again, substantiated by reference to a letter that the applicant had sent to the Prosecutor General of Rwanda, in which he raised the difficulties of contacting his family.
VII. The ACtHPR’s Judicial Function in Cases of Non-Appearance of the Respondent State
An important aspect of the judgment under discussion is that Rwanda chose not to participate in the proceedings before the ACtHPR. Rwanda’s choice does not necessarily come as a surprise given the fact that it did not fully participate in the proceedings in Ingabire Victoire Umuhoza. Since Rwanda withdrew its declaration to the ACtHPR’s jurisdiction in 2016, it stopped appearing before the ACtHPR. In light of Rwanda’s non-appearance, and in the interest of the proper administration of justice, the ACtHPR decided to render a judgment in default. The ACtHPR’s approach regarding the implications of rendering a judgment in default will be analyzed below.
The foregoing discussion on the merits of the application demonstrates that, with regard to all declared violations, the ACtHPR relied heavily upon letters sent by the applicant to state authorities. The vulnerable status of the applicant (imprisoned, elderly, and in poor health) played an important role in drawing inferences. Although the applicant did provide certain prima facie evidence to shift the burden to the respondent state, the evidence upon which respective violations were declared was circumstantial. These shortcomings are, to a great extent, an inevitable consequence of Rwanda’s non-appearance, providing little room to appreciate the allegations in a more balanced way. This, in turn, raises the question of how the ACtHPR perceives its function when rendering a judgment by default.
In contrast to disputes decided by international human rights law courts, non-appearance is a phenomenon well-known in inter-state dispute settlement, which is also on the rise again. One of the main challenges that international courts have to address in fulfilling their judicial function is that the non-appearing party does not contribute to ascertaining relevant facts and law. The constitutive instruments of certain international courts have made deliberate provisions in connection to this challenge. For instance, Article 53(2) of the Statute of the International Court of Justice (ICJ) provides that the ICJ must satisfy itself that the claim is well-founded in fact and law. There is no precisely equivalent provision in the rules of procedures of international human rights courts. Yet, it is acknowledged that the default procedure needs to be “consistent with the proper administration of justice” or that they need to “take the measures necessary to conduct the proceedings to their completion.” Curiously, Rule 63(1) of the Rules of the ACtHPR is less informative merely providing that “[t]he Court may, on its own motion, enter judgment in default after it has satisfied itself that the defaulting party has been duly served with the application and all relevant documents.”
The true challenge for ensuring that the applicant’s claims are well founded in fact and law is that an international court must find ways to compensate for the absence of the respondent State. Such concerns are alleviated in practice by indirect evidence in the form of inferences of facts and circumstantial evidence, reliance upon unofficial communications, public statements, or a proactive stance in seeking evidence (e.g., soliciting expertise, seeking publicly available information). Consequently, the ACtHPR’s approach in Léon Mugesera drawing certain inferences from the applicant’s vulnerable status and the fact that he was imprisoned under the state’s control is aligned with international practice. Yet the letters sent by the applicant to state authorities, which formed the primary, if not exclusive, piece of evidence to substantiate his claims, are arguably circumstantial.
For the ACtHPR to verify, to its best ability, the factual and legal accuracy of the complaints, it could have considered more publicly available sources of information or exercised its discretion under Rule 55 to request, on its own accord, certain measures so as to take evidence or receive information. At the very least, the ACtHPR could have been more transparent in its reasoning by openly acknowledging the difficulties and referring to guidance from the case law of other international courts so as to set out its own position on the matter. This was also a point of critique raised by Judge Fatsah Ouguergouz in his Separate Opinion in African Commission of Human and Peoples’ Rights v. Libya, in which the respondent state did not appear and the ACtHPR’s reasoning lacked grounding on sufficient evidence in finding a violation of Saif Al Islam Kadhafi’s rights under Articles 6 and 7 of the ACHPR.
VIII. Appropriate Pecuniary Reparations for a Convicted Genocidaire?
A final point that should not go unnoticed is that the ACtHPR awarded the applicant a considerable amount of money for pecuniary reparations, including compensation for the moral prejudice suffered by him and by the indirect victims (i.e., his family). The applicant’s prior conviction for inciting ethnic hatred and persecution as a crime against humanity, brings to the fore the question of whether the finding of a violation could constitute just satisfaction without awarding monetary compensation. International courts on human rights have neither considerable nor consistent case law on this matter. For instance, there were cases in which the European Court of Human Rights (ECtHR) did not award monetary compensation due to public policy reasons or due to reasons that the ECtHR did not find it appropriate to make such an award. On other occasions, however, the ECtHR awarded such compensation. The ACtHPR could revisit its approach on how to exercise its discretion in similar circumstances in the future.
[*] Assistant Professor of International Law, University of Groningen, The Netherlands
Léon Mugesera v. Republic of Rwanda, App No 012/2017, Judgment, African Court on Human and Peoples’ Rights [Afr. Ct. H.P.R.] (Nov. 27, 2020), https://www.african-court.org/cpmt/decisions-group.
See P. Gouveritch, We Wish to Inform You that Tomorrow We Will be Killed with Our Families: Stories From Rwanda, 96-98 (Macmillan, 2000).
 Ingabire Victoire Umuhoza v. Republic of Rwanda, No. 003/2014, Judgment, Afr. Ct. H.P.R. (Nov. 24, 2017).
 Léon Mugesera, para. 22.
 Id. paras. 41-42.
 Id. ¶ 44.
 Id. para. 59, 61.
 Id. paras. 58-59.
 Id. para. 62.
 Léon Mugesera, paras. 63-64.
 Id. paras. 72-73.
 Id. para. 72.
 Léon Mugesera v. Republic of Rwanda, No. 012/2017, Partial Dissenting Opinion of Judge Ben Achour, Afr. Ct. H.P.R. (Nov. 27, 2020), https://www.african-court.org/cpmt/decisions-group.
 Léon Mugesera, paras. 42, 45.
 Id. at paras. 42, 45, 47.
 Id. paras. 90-91.
 Id. paras. 83-91.
 Id. paras. 84-88, 90.
 Id. paras. 101-104.
 Léon Mugesera, para. 104.
  Id. ¶ 121.
 Id. ¶ 120.
 Id. ¶¶ 6.
 Ingabire Victoire Umuhoza, ¶¶ 39-42.
 Withdrawal for Review by the Republic of Rwanda from the Declaration Made Under Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, Republic of Rwanda, Ministry of Foreign Affairs and Cooperation (Feb. 24, 2016), https://www.african-court.org/wpafc/wp-content/uploads/2020/10/Withdrawal-Rwanda.pdf.
 In fact, non-appearance of respondent States was a recurring theme at the International Court of Justice (ICJ) between 1972 and 1986. See Matthias Goldmann, International Courts and Tribunals, Non-Appearance, in 1 The Max Planck Encyclopedia of Public International Law 606-12 (Wolfrum Rüdiger ed., 2008).
 See, e.g., the non-appearance of China in Permanent Court of Arbitration, In the Matter of the South China Sea Arbitration (The Republic of the Philippines v. The Peoples’ Republic of China) (Award) Jul. 12, 2016; Venezuela did not appear before the ICJ in Arbitral Award of 3 October 1899 (Guyana v. Venezuela) (Jurisdiction), Dec. 18, 2020. Russia also abstained from appearing in Permanent Court of Arbitration, In the Matter of the Arctic Sunrise Arbitration (The Kingdom of the Netherlands v. The Russian Federation) (Award on the Merits) Aug. 14, 2015.
 Statute of the International Court of Justice, Apr. 18, 1946, 33 U.N.T.S 993.
 Rule 65, Rules of European Court of Human Rights, updated Oct 18, 2021, .https://www.echr.coe.int/documents/rules_court_eng.pdf.
 Article 29(1), Rules of Procedure of the Inter-American Court of Human Rights, approved by the Court during its LXXXV Regular Session (Nov. 16-28, 2009), https://www.corteidh.or.cr/reglamento.cfm?lang=en#_ftn1. In Caesar v. Trinidad and Tobago, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 123, ¶¶ 34-39 (Mar. 11, 2005), the IACtHR stated that it has to take into account any considerations that may assist it in establishing the truth of the facts. See also Constitutional Court v. Peru, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 55, ¶¶ 58-62 (Jan. 31, 2001); Ivcher-Bronstein v. Peru, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 71, ¶¶ 78-82 (Feb. 6, 2001).
 Rules of the African Court on Human and Peoples’ Rights, adopted Sept. 25, 2020, https://www.african-court.org/wpafc/wp-content/uploads/2021/04/Rules-Final-Revised-adopted-Rules-eng-April-2021.pdf.
 Goldmann, supra note 24, ¶¶ 17-18.
 Rule 55 concerns measures for taking evidence. In particular, the ACtHPR may request the hearing of a witness, an expert or any other person; the submission of an opinion or report; or the conduct of an enquiry or a field visit.
 See African Commission on Human and Peoples’ Rights. v. Libya, No. 002/2013, Separate Opinion of Judge Fatsah Ouguergouz, African Comm’n of Hum. and Peoples’ Rts. v. Libya [Afr. Ct. H.P.R.] (Jun. 3, 2016), ¶¶ 4, 20-28, https://www.african-court.org/cpmt/decisions-group.
 See, e.g., McCann and Others v. United Kingdom, App no 18984/91, Judgment, Sept. 27, 1995 (Grand Chamber), ¶ 219.
 See, e.g., A and Others v. United Kingdom, App no 3455/05, Judgment, Feb. 19, 2009 (Grand Chamber), ¶¶ 249-253. See David Harris et al., Harris, O’Boyle & Warbrick: Law of the European Convention on Human Rights (2018), 169-170. See also African Commission on Human and Peoples’ Rights. v. Libya, No. 002/2013, Separate Opinion of Judge Fatsah Ouguergouz, African Comm’n of Hum. and Peoples’ Rts. v. Libya [Afr. Ct. H.P.R.] (Jun. 3, 2016), https://www.african-court.org/cpmt/decisions-group.