Fulgence Kayishema – extradition from South Africa to Arusha proceeds at snail’s pace

Update: Friday 17 February:
It has taken 10 months of tortuous and expensive legal wrangling but a glimmer of light has finally arrived in the case of genocide suspect Fulgence Kayishema. At the latest legal hearing of his case on 16th February prosecutors moved to centralise all the local charges against him so they could be dealt with by one court. They include allegations that he used false names for employment, travel and health care, such as pretending to be a Malawian named Positano Chikuse, and Burundians named Donatien Nibasumba and Fulgence Denied Minani.
More importantly. he will return to court later in March as the first efforts are made to extradite him to Tanzania to stand trial in the newly built – but so far hardly used – court house of the UN Mechanism, in Arusha. The charges here are of the most serious kind – that in collusion with the priest Fr Athanase Seromba, Kayishema assisted the killing of more than 2,000 Tutsis hiding in the Parish Church building in Nyange. Seromba is already serving life for this atrocity.

Update: 13 December:
The case creaks onwards – it seems even his supporters and family are bored with it and did not show up in court in Cape Town for Kayishema’s latest appearance on 13 December. Clutching a bible, as usual (one wonders if he clutched this during the genocide in 1994?), the man accused of horrific atrocities sat quietly while legal wrangling eventually decided that he should return to court on 16th February 2024 when a decision will be made where the case will be heard – at magistrates, regional or High Court. He is fighting 56 charges relating to immigration offences and attempting to stave off eventual extradition to the UN Mechanism in Arusha, Tanzania, to face trial for genocide. Prosecutors told the court at his latest hearing that they had finally finished all their work.

UPDATE 30 October 2023:
Five months on from his arrest and the wheels of justice are barely turning when it comes to getting alleged mass murderer Fulgence Kayishema in the dock to face justice. Still held in Helderstroom prison in the Western Cape, near where he was arrested in May, defence lawyers, prosecutors and a judge have been arguing over the state of play when it comes to the two charges against Kayishema: Using several different names during his life in South Africa for the past twenty years so breaking both the immigration and refugee act as well as fraud; and second, on 15 August, Kayishema was rearrested in the prison under an international arrest warrant demanding he be extradited to face charges in Arusha, Tanzania where the United National Residual Mechanism resides. And interestingly, as a sub plot to the many other political and judicial ‘worms’ in this particular case, it seems back in 2019 UN Mechanism prosecutors secretly asked  their bosses for Kayishema’s case (if he was arrested) to be transferred back to Arusha rather than be heard in Rwanda. Why? Because an unnamed country (i.e. South Africa) would not let UN prosecutors arrest this suspect genocidaire in order for him to be deported to stand trial in Kigali given the two countries were on very poor diplomatic relations. i.e. ‘Justice’ only on South Africa’s terms. And, of course, it gives the ‘White Elephant’ court house, built at the cost of millions of dollars in Arusha, the possibility of finally holding a case.
For more on this judicial/political shambles and horse-trading see: ‘What’s happening in the Kayishema case’ Justiceinfo.net.
Back to Kayishema’s latest appearance in court of 29 October, it seemed nothing had moved forward from his appearance two months earlier. The prosecution, while charging the accused with 56 counts of immigration fraud, have yet to produce evidence, and continue to tell the judge they are awaiting documents to appear. Kayishema, clutching a bible and waving to family and friends in the public gallery remains, however, behind bars while the case drags out.
In August, Judge Robert Hanley noted with surprise that despite the new arrest and charge there was no paperwork or legal application for extradition before him. He demanded this be filled in and put before him as soon as possible otherwise the case would be thrown out. Thankfully, Kayishema remains in prison while prosecutors and defence argue over next moves. However, the current progress bodes ill for Kayishama facing justice anytime soon for his suspected role in the killing of thousands of Tutsis at Nyangwe Church alongside convicted genocidaire priest Anathase Seromba. The next court appearance of Kayishema pencilled in for 27 October. His family have also be warned they need to produce good reasons why their own refugee status should not be cancelled given they are alleged to be complicit in the identity lies that enabled the suspect to remain hidden in the country.

At a previous hearing in June:

Kayishema’s lawyer Juan Smuts announced that Kayishema was going to claim political asylum in South Africa – a ploy to stop or at least delay the extradition process that is underway that survivors hope will see him answer for his alleged crimes in a court – either in The Hague or in Rwanda. On 20th June, at his latest court appearance, Kayishema waved and smiled to family as he was led into court, giving a thumbs-up sign. South African prosecutors have charged him with fraud related to his time in the country, and will also want the extradition case to be heard promptly. However, the case was adjourned for two months until 18 August.

Background

On 24 May 2023, Fulgence Kayishema, one of the last major fugitives of the 1994 genocide against the Tutsi wanted by the UN, was arrested in an operation between the UN genocide tracking team and South African police. Kayishema is thought to have been in South Africa for 23 years, having arrived around 2000 using one of many fake names he used after fleeing Rwanda in 1994 at the end of the genocide against the Tutsi. Given the very poor political relationship between the South African authorities and the UN ICTR and then its successor, the IRMCT, as well as Rwanda, genocide tracking teams have not been able to follow up leads in the country until recently when a new era of cooperation began. In 2018 South Africa was alerted that Kayishema was in the country but authorities failed to act allowing the alleged killer to go to ground yet again. It took another five years to relocate him. The arrest, though many years overdue, shows how the tracking teams work is reliant on states fully cooperating with it – and how significant results can be made when this happens.

Kayishema made his first appearance in court on 26 May in Cape Town.
On 2nd June he briefly appeared again before magistrates where further charges against him were laid, that include 5 counts of immigration fraud – using a fake name and saying he was from Burundi when he applied for asylum in January 2000 and again in 2004. On 9 June this was upgraded by prosecutors to 54 charges. Kayishema remains in custody while investigations continue. Behind the scenes the UN makes preparations to formally have him extradited first to The Hague, and then probably on to Rwanda to stand trial. With the UN trial of Félicien Kabuga has recently descended into farce and has been abandoned due to the old age of the accused, the UN will be anxious the hard work to capture the alleged mass murderer Kayishema does not go to waste yet again.

In South Africa, Kayishema used the name Donatien Nibasumba and worked on a farm in Paarl in the Western Cape. When arrested he at first denied he was Kayishema but later admitted he was the genocide suspect, telling the Americian and British leads of the tracking team that ‘I have known for a long time that one day I would be arrested.’

Kayishema, 62, a former gendarme (police) commander, is suspected of assisting the killing of thousands of Tutsis, especially at the parish of Kivumu, alongside the interahahmwe and the Catholic priest Fr Anastase Seromba. In 2008 Seromba was convicted at the ICTR for genocide and sentenced to life imprisonment. He said he was ‘sorry’ for the killings but has denied taking any part in the genocide. At the time of his arrest American authorities had a $5 million bounty on his head for information leading to his capture.

The Residual Mechanism agreed that all its remaining cases should now be transferred to Kigali, and it is expected that Kayishema will be flown first to The Hague, when extradition proceedings from South Africa are carried though, and then on to rwanda to stand trial.

Since 2020, the UN Fugitive Tracking Team has accounted for the whereabouts of five fugitives, including Félicien Kabuga (on trial), Augustin Bizimana (dead), Protais Mpiranya (dead), and Phéneas Munyarugarama dead). There are now only three outstanding fugitives – Aloys Ndimbati, Charles Sikubwabo and Ryandikayo.