V. Deliberation on Ndayambaje’s Motion

188. The Chamber recalls that Ndayambaje’s submissions on Paragraphs 6.37 to 6.39 and 6.50 to 6.53 of the Amended Indictment, as well as the deletion of introductory formulation to each Count and the lack of credibility and reliability of Prosecution Witness QAR were dismissed under Paragraphs 75, 79 and 82 of the present Decision, as they fall out of the scope of Rule 98bis.

Request for Acquittal on Count 1 (Conspiracy to Commit Genocide)

189. The Defence submits that the Prosecution failed to adduce evidence that Elie Ndayambaje met or even knew his alleged co-conspirators other than Alphonse Nteziryayo. The Defence further submits that the Prosecution failed to adduce evidence that Elie Ndayambaje had an agreement with Alphonse Nteziryayo for the commission of the crimes described in Count 1. The Prosecution relies on its opening statement, on the Decision of joinder and on the testimonies of Prosecution Witnesses TO, QAF, QAR, RV and Expert Guichaoua’s Report to submit that sufficient evidence was adduced to satisfy the Chamber of Elie Ndayambaje’s guilt on this count.

190. As a preliminary matter, the Chamber underscores that neither the Prosecution opening statement nor this Chamber’s Decision on Joinder are relevant for a determination under Rule 98bis, for they cannot amount to the proof required for the assessment of any level of guilt.

191. The Chamber relies on the same jurisprudence and reasoning as previously held with respect to Pauline Nyiramasuhuko’s and Arsène Shalom Ntahobali’s request for acquittal on Count 1. The Chamber will first make its determination on Count 1 as a whole before examining the specific paragraphs contested by the Defence.

192. The Chamber notes that several Prosecution Witnesses testified that Elie Ndayambaje was reappointed bourgmestre of Muganza in June and that his swearing-in ceremony was chaired by Alphonse Nteziryayo at the Muganza communal office in the Remera secteur.[163] Prosecution Witness RV testified that Pauline Nyiramasuhuko, Sylvain Nsabimana and other authorities attended this meeting.[164] Prosecution Expert Witness Guichaoua testified that the swearing-in ceremonies of Alphonse Nteziryayo as Préfet and Elie Ndayambaje as Bourgmestre corresponded to the launching of the last phase of the killings in Butare Préfecture which was aimed at “finishing the work.”[165] Both Alphonse Nteziryayo’s and Elie Ndayambaje’s speeches were reported by Prosecution witnesses as highly inflammatory and Prosecution Witness RV testified that Tutsi who had so far survived were killed after this gathering.[166] The Chamber also notes that several Prosecution Witnesses testified that Elie Ndayambaje coordinated the action of policemen, soldiers, gendarmes and civilians and the procurement and distribution of weapons, in particular during the massacre of Tutsi on Kabuye Hill.[167] There is also evidence that Elie Ndayambaje was involved in the military training of civilians.[168] The Chamber considers that this evidence, if believed, could be sufficient to satisfy a reasonable trier of fact beyond reasonable doubt of Elie Ndayambaje’s participation in a Conspiracy to Commit Genocide.

193.  Count 1 relies on Paragraphs 5.1, 5.8, 5.13, 6.28, 6.30 to 6.34, 6.36 to 6.39 and 6.50 to 6.54 of the Amended Indictment. Among those paragraphs, the Defence does not dispute Paragraphs 6.30 to 6.33. For the reasons developed previously, the Chamber dismisses the submissions of the Defence in relation to Paragraphs 6.37, 6.38, 6.39 and 6.50 to 6.53, which are out of the scope of Rule 98bis as they relate to alleged defects of the Amended Indictment. Therefore, the Chamber limits its determination on Paragraphs 5.1, 5.8, 5.13, 6.28, 6.34, 6.36 and 6.54 of the Amended Indictment as they are pleaded in support of Count 1.

194. The Chamber recalls that Paragraph 5.1 of the Amended Indictment alleges that, from late 1990 to July 1994, several personalities conspired among themselves and with others to work out a plan for the extermination of Tutsi and the elimination of the opposition. Among other things, this plan relied on recourse to hatred and ethnic violence, the training of and distribution of weapons to militiamen, as well as the preparation of lists of people to be eliminated. The Chamber refers to the same evidence as mentioned in support of Count 1, namely the fact that his swearing-in ceremony was attended by several personalities, including Pauline Nyiramasuhuko, Sylvain Nsabimana and Alphonse Nteziryayo, and was the occasion for inflammatory speeches inviting the population to complete the extermination of Tutsi, his coordinated action with policemen, soldiers, gendarmes and civilians and the distribution of weapons, in particular during the massacre of Tutsi on Kabuye Hill, as well as his involvement in the military training of civilians. The Chamber considers that this evidence, if believed, could be sufficient to satisfy a reasonable trier of fact beyond reasonable doubt of Elie Ndayambaje’s responsibility on the facts pleaded in paragraph 5.1 of the Amended Indictment.

195.  Paragraph 5.8 of the Amended Indictment alleges that from April to July 1994, incitement to hatred and violence was propagated by various prominent persons, including Elie Ndayambaje. The Chamber relies on the same evidence as referred to in relation to Count 1, especially  the fact that his swearing-in ceremony was attended by several personalities, including Pauline Nyiramasuhuko, Sylvain Nsabimana and Alphonse Nteziryayo, and was the occasion for inflammatory speeches inviting the population to complete the extermination of Tutsi, and concludes that the evidence adduced, if believed, could be sufficient for a reasonable trier of fact to sustain a conviction against Elie Ndayambaje on Paragraph 5.8 of the Amended Indictment.

196.  Paragraph 5.13 of the Amended Indictment alleges that, before and during the events, Elie Ndayambaje and others distributed weapons to the militiamen and certain carefully selected members of the civilian population with intent to exterminate the Tutsi and their accomplices. The Chamber notes that Prosecution Witness RV testified that, on 23 April 1994, Elie Ndayambaje and others raided the weapons and ammunitions store of Muganza jail to take weapons and ammunitions in order to kill Tutsi refugees on Kabuye Hill, Ndora commune. [169] The Chamber finds that the evidence led by this witness, if believed, could be sufficient to sustain a conviction against Elie Ndayambaje on Paragraph 5.13.

197. Paragraph 6.28 of the Amended Indictment alleges that, as a result of the Government’s appeals to begin the massacres on 19 April 1994, Elie Ndayambaje became the de facto bourgmestre of Muganza in order to oversee the massacres in the region. The Defence submits that the Prosecution failed to adduce evidence that Elie Ndayambaje attended the 19 April meeting and that his reappointment as bourgmestre was linked to this meeting. The Chamber notes that Prosecution Witness RV testified that Elie Ndayambaje did not attend the 19 April meeting that was held for the swearing-in of Sylvain Nsabimana.[170] Prosecution Witness RV also testified that Elie Ndayambaje officially resumed as bourgmestre on 21 June 1994, more than two months after the 19 April. However, Prosecution Witness RV admitted that, during his interim mandate as bourgmestre, Chrysologue Bimenyimana carried out most of the activities under the counsel of Elie Ndayambaje and had to follow Elie Ndayambaje’s instructions.[171] Prosecution Witness RV testified that Elie Ndayambaje even took decisions against Chrysologue Bimenyimana’s will, by using the conseillers who remained on his side.[172] Prosecution Expert Guichaoua’s Report notes that, as early as April 1994, Elie Ndayambaje resumed de facto his functions as bourgmestre of Muganza[173] and, after the governmental authorisation to commit massacres on 19 April 1994, he became very active in their commission.[174] Several Prosecution Witnesses also testified that Elie Ndayambaje had de facto authority on the communal policemen during that period.[175] The Chamber finds that the evidence led by those witnesses, if believed, could be sufficient to sustain a conviction against Elie Ndayambaje on Paragraph 6.28.

198. Paragraph 6.34 of the Amended Indictment alleges that Elie Ndayambaje assisted Alphonse Nteziryayo, the official in charge of civil defence, in supervising the training of militiamen and the distribution of weapons to them. The Chamber notes that Prosecution Witness TO testified that in June 1994, Elie Ndayambaje convened a meeting in a forest near Muganza communal office in Remera secteur, which began by the training of all the attendees of the meeting on how to use of bow and arrows. The Chamber finds that the evidence led by this witness, if believed, could be sufficient to sustain a conviction against Elie Ndayambaje as regards Paragraph 6.34.

199. Paragraph 6.36 of the Amended Indictment alleges that Prime Minister Jean Kambanda met Elie Ndayambaje and others in Muganza commune in June 1994 and that, by his presence and by not denouncing the massacres, Jean Kambanda confirmed that the killings were condoned by the Government. The Chamber finds that although the charge pleaded in this paragraph is directed against Jean Kambanda, the paragraph still has relevance to Count 1 (Conspiracy to Commit Genocide) with which Ndayambaje is charged. The substance of that count is considered under Paragraph 192 of the current decision.

200. Paragraph 6.54 of the Amended Indictment alleges that the massacres perpetrated were the result of a strategy adopted by political, civil and military authorities at the national and local levels involving individuals, such as Elie Ndayambaje, who conspired with others to exterminate the Tutsi. The Chamber relies on the same evidence as referred to in support of Count 1 to conclude that the evidence adduced, if believed, could be sufficient for a reasonable trier of fact to sustain a conviction against Elie Ndayambaje regarding Paragraph 6.54.

201.  In light of the evidence adduced in support of Count 1 and its supporting paragraphs, the Chamber dismisses Elie Ndayambaje’s Motion for acquittal under Rule 98bis on this Count 1 (Conspiracy to Commit Genocide).

Request for Acquittal in Relation to Paragraph 5.1 of the Amended Indictment

202. For the reasons discussed in the determination on Elie Ndayambaje’s submissions relating to Paragraph 5.1 as pleaded in support of Count 1, namely the fact that Elie Ndayambaje’s swearing-in ceremony was attended by several personalities, including Pauline Nyiramasuhuko, Sylvain Nsabimana and Alphonse Nteziryayo, and was the occasion for inflammatory speeches inviting the population to complete the extermination of Tutsi, his coordinated action with policemen, soldiers, gendarmes and civilians and the distribution of weapons, in particular during the massacre of Tutsi on Kabuye Hill, as well as his involvement in the military training of civilians, the Chamber considers that the evidence adduced, if believed, could be sufficient to satisfy a reasonable trier of fact beyond reasonable doubt of Elie Ndayambaje’s responsibility on the facts pleaded in this paragraph. Acquittal under Rule 98bis is therefore denied regarding Paragraph 5.1 of the Amended Indictment.

Request for Acquittal in Relation to Paragraph 5.8 of the Amended Indictment

203. For the reasons discussed in the determination on Elie Ndayambaje’s submissions relating to Paragraph 5.8 as pleaded in support of Count 1, especially  the fact that his swearing-in ceremony was attended by several personalities, including Pauline Nyiramasuhuko, Sylvain Nsabimana and Alphonse Nteziryayo, and was the occasion for inflammatory speeches inviting the population to complete the extermination of Tutsi, the Chamber concludes that the evidence adduced, if believed, could be sufficient for a reasonable trier of fact to sustain a conviction against Elie Ndayambaje in relation to this paragraph. Acquittal under Rule 98bis is therefore denied regarding Paragraph 5.8 of the Amended Indictment.

Request for Acquittal in Relation to Paragraph 5.13 of the Amended Indictment

204. For the reasons discussed in the determination on Elie Ndayambaje’s submissions relating to Paragraph 5.13 as pleaded in support of Count 1, namely that Prosecution Witness RV testified that, on 23 April 1994, Elie Ndayambaje and others raided the weapons and ammunitions store of Muganza jail to take weapons and ammunitions in order to kill Tutsi refugees on Kabuye Hill, Ndora commune, the Chamber finds that the evidence adduced in support of this paragraph, if believed, could be sufficient for a reasonable trier of fact to be satisfied beyond reasonable doubt of the Accused responsibility. Therefore, pursuant to Rule 98bis, the Chamber denies Elie Ndayambaje’s request for acquittal regarding Paragraph 5.13 of the Amended Indictment.

Request for Acquittal in Relation to Paragraph 6.28 of the Amended Indictment

205. For the reasons discussed in the determination on Elie Ndayambaje’s submissions relating to Paragraph 6.28 as pleaded in support of Count 1, namely the fact that, as early as April 1994, Elie Ndayambaje resumed de facto his functions as bourgmestre of Muganza and had de facto authority on the communal policemen, the Chamber finds that the evidence adduced, if believed, could be sufficient to sustain a conviction against Elie Ndayambaje on Paragraph 6.28. Therefore, pursuant to Rule 98bis, the Chamber denies Elie Ndayambaje’s request for acquittal regarding Paragraph 6.28 of the Amended Indictment.

Request for Acquittal in Relation to Paragraph 6.34 of the Amended Indictment

206. For the reasons discussed in the determination on Elie Ndayambaje’s submissions relating to Paragraph 6.34 as pleaded in support of Count 1, namely the fact that Elie Ndayambaje convened a meeting in a forest near Muganza communal office in Remera secteur, which began by the training of all the attendees of the meeting on how to use of bow and arrows the Chamber finds that the evidence adduced in support of this paragraph could be sufficient for a reasonable trier of fact to be satisfied beyond reasonable 7doubt of the Accused guilt. Therefore, pursuant to Rule 98bis, the Chamber denies Elie Ndayambaje’s request for acquittal regarding Paragraph 6.34 of the Amended Indictment.

Request for Acquittal in Relation to Paragraph 6.36 of the Amended Indictment

207. For the reasons discussed in the determination on Elie Ndayambaje’s submissions relating to Paragraph 6.36 as pleaded in support of Count 1, the Chamber finds that the evidence adduced in support of this paragraph, if believed, is sufficient for a reasonable trier of fact to be satisfied beyond reasonable doubt of the Accused’s guilt. Therefore, pursuant to Rule 98bis, the Chamber denies Elie Ndayambaje’s request for acquittal regarding Paragraph 6.36 of the Amended Indictment.

Request for Acquittal in Relation to Paragraph 6.54 of the Amended Indictment

208. For the reasons discussed in the determination on Elie Ndayambaje’s submissions on acquittal on Count 1, the Chamber is of the view that the evidence adduced in support of this paragraph could be sufficient for a reasonable trier of fact to be satisfied beyond reasonable doubt of the Accused’s responsibility. Therefore, pursuant to Rule 98bis, the Chamber denies Elie Ndayambaje’s request of acquittal regarding Paragraph 6.54 of the Amended Indictment.

THEREFORE, THE TRIAL CHAMBER

DENIES Nyiramasuhuko’s Motion in its entirety;

DENIES Ntahobali’s Motion in its entirety;

GRANTS PARTIALLY Nsabimana’s Motion in the following terms: (a) ACQUITS Sylvain Nsabimana on the charges as founded on Paragraph 6.25 of the Amended Indictment, as discussed in Paragraphs 168-169 of the present Decision;

DENIES Sylvain Nsabimana’s Motion in all other respects;

GRANTS PARTIALLY Kanyabashi’s Motion in the following terms: (a) ACQUITS Joseph Kanyabashi on the charges as founded on Paragraph 6.38 of the Amended Indictment, as discussed in Paragraphs 177-178 of the present Decision;

DENIES Joseph Kanyabashi’s Motion in all other respects, except as specified in Paragraphs 182-183 of the present Decision with regard to the following section of Paragraph 6.43 of the Amended Indictment: “[a]t that time, Joseph Kanyabashi told the Préfet that the Tutsi refugees at the Préfecture had to be exterminated”;

DENIES Elie Ndayambaje’s Motion in its entirety.

Arusha, 16 December 2004
William H. Sekule	Arlette Ramaroson	Solomy Balungi Bossa
Presiding Judge	Judge	Judge
	[Seal of the Tribunal]