CCLA Rights Watch
La veille sur les
droits et libertés

Eric,

There is little to like about Léon Mugesera. In November 1992, he allegedly stated in a major political speech that “we the people are obliged to take responsibility ourselves and wipe out this scum” and that the bodies of Tutsis should be dumped “into the rivers of Rwanda.” Soon after, he fled to Canada and he has resided in Quebec ever since. Mugesera’s statements are often cited as having fomented hatred in the lead-up to and during the Rwandan genocide in 1994.

Mugesera’s stay in Canada may be nearing its end. His epic legal saga has involved all levels of the Canadian court system and countless immigration ministers. In recent weeks, however, it seemed likely that his judicial clock had run out. He was scheduled to be deported on January 14, 2012, until illness forced the court to delay his deportation. On January 21, a Quebec Superior Court will rule on whether Mugesera’s deportation can be further delayed until a UN committee assesses the risk of torture in Rwanda.

Judging by internet commenters (always a good barometer of public opinion), most Canadians would be happy to see Mugesera go. Perhaps rightly, he is perceived as having drained the Canadian legal system through endless litigation and he is viewed as a problem to be dealt with by the Rwandan justice system. In a sense, however, our approach to Mugesera is a litmus test for our willingness to substantively commit to civil liberties. Just like Bill Whatcott or Ernst Zundel, we must ensure that our judgment of Mugesera’s actions does not cloud the fulfillment of our obligation to ensure that his rights are protected.

I’m obviously not an expert of Rwanda of international law. And to be forthright, numerous respected judges, academics and lawyers have considered the arguments against deportation and concluded that they do not hold water. Still, I am distinctly uncomfortable with the thought that the Canadian government might be sending someone to be tortured or killed.

In United States v. Burns, the SCC effectively ruled that extraditing a fugitive to the United States to face the death penalty would violate the Charter. For good reason, the recently retired Justice Ian Binnie has referred to the decision as one of the court’s finest hours.

To be fair, Rwanda outlawed the death penalty in 2007. The Rwandan government would undoubtedly face serious international sanctions if it even dared to consider changing course. However, numerous observers have commented on the deterioration of the rule of law in Rwanda in recent years. In “There Will Be No Trial,” (2007) Human Rights Watch narrates how deaths in police custody has increased in recent years. Unsurprisingly, many of the deaths were of individuals “accused of crimes related to the genocide.” Amnesty USA’s 2011 report on Rwanda also refers to the practice of “enforced disappearances,” although it indicates that these typically relate to the conflict in the DRC.

There also seem to be well-founded concerns about the risk of torture and substantial harm to Mugesera once in Rwanda. A new law passed in October set out extremely harsh treatment for individuals sentenced to “life imprisonment with special provisions” (essentially the sentence that replaces the death penalty). Amnesty suggests that the possibility of prolonged solitary confinement exists, as “the law requires prisoners to be kept in individual cells for up to 20 years.” The United Nations Committee against Torture requested that Canada refrain from deporting Mugesera until it can investigate the risk of torture and death.

A recent Globe and Mail editorial advocating for his deportation stated that recent rulings by the European Court of Human Rights and the International Criminal Tribunal have found “improvements in judicial independence and prison conditions.” According to the Amnesty report cited above, in 2011, “no country extradited genocide suspects to Rwanda due to fair trial concerns.”

These concerns have to be weighed against the international community’s obligations and duties to Rwanda. Canada owes it to all Rwandans to let the Rwandan justice system prosecute those who played a role in the genocide. Rwanda’s gacaca courts have heard countless cases, albeit with a mixed record. Some might argue that the Rwandan justice system should be given the opportunity to prove how far it has come. Still, I can’t help but wonder if the risk of an aberrant trial and mistreatment requires the continue patience of Canadians – and Rwandans.

——

Farid,

You raise some excellent points regarding Léon Mugesera and his impending deportation. I’d like to address the two distinct elements of your argument separately.

I agree that we must not let the nature of someone’s actions impact our thinking about their human rights; the Zundels and Whatcotts merit our protection. I would further note that Mugesera’s speech and his supposed role leading up to the genocide are the subject of debate and are not entirely clear.

The more compelling point is that Mugesera will likely be tortured if deported to Rwanda. Consequently, deporting him could subject him to cruel and unusual punishment and infringe his right to life, liberty and security of the person (Canadian Charter ss. 7 and 12, Suresh), along with numerous other international agreements. I agree that this is a serious concern and that Canada should not willingly expose anyone within its borders to such cruel practices. National sovereignty and comity among nations should not be invoked to side-step questions concerning fundamental human rights.

I would like to point to the doctrine of international law known in Latin as “aut dedere aut judicare“ (extradite or prosecute in English) as a possible, partial solution. Sovereign nations have a reciprocal duty towards each other to deliver up alleged international criminals to those countries seeking to bring them to justice (extradite) or else to prosecute them in their own courts. This doctrine allows a nation to avoid politically unpopular decisions, or at least to choose the least unpopular way forward. It also allows a nation to ensure that the perpetrator’s human rights are respected by selecting the venue for prosecution (and incarceration) which has the best human rights record.

Mugesera’s case is an excellent example of this latter concern. If Canada is truly concerned that Mugesera will be mistreated in Rwanda, they should prosecute him here. Mugesera has in fact asked Canada to invoke this right and to try him under the new Crimes Against Humanity and War Crimes Act rather than deport him to Rwanda. Unfortunately, Mugesera and civil libertarians have thus far been unsuccessful in convincing the Canadian government to do so. Without the threat of the death penalty hanging over Mugesera’s head, it is unlikely that the Quebec Superior Court will interfere in the highly political decision to deport him. We can only hope that continued public scrutiny forces the government to make future decisions that are in accordance with Canada’s international legal obligations and the Canadian Charter.

Allow me to make one further point. Freedom of speech and other political and civil liberties have sometimes taken a backseat to “national unity” under Paul Kagame’s government. This is rightfully the subject of international scrutiny. But Rwanda has also come a long way since those 100 traumatic days in 1994. They have expended an enormous amount of time and energy in reconciliation. Publicly naming and shaming of genocidaires has been a key tenet of their rehabilitation. It is thus understandable, if not excusable, that both Rwanda and Canada are interested in having Mugesera tried in Rwanda rather than Canada.