A Date With Justice: Mugesera's Inevitable Deportation from Canada

JURIST Columnist Charles Jalloh of the University of Pittsburgh School of Law says that Léon Mugesera, who allegedly incited genocide in Rwanda and subsequently obtained asylum in Canada, must finally be deported to Rwanda to face trial for his role in the 1994 genocide...
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Léon Mugesera, the Rwandan refugee in Canada who gave an inflammatory speech that allegedly helped to foment the worst and speediest genocide of the twentieth century, succeeded in evading justice by fleeing to the most unlikely safe haven: Canada. Eighteen years after he arrived in Québec, his luck appears to have run out as the legal saga that prevented his deportation to Rwanda, where he is expected to face trial for inciting genocide, draws to a dramatic end.

Canada, a liberal, multicultural and tolerant society that takes great pride in pioneering the concept of peacekeeping and steadfastly supporting the UN, is the most unlikely safe haven for Mugesera, an extremist Hutu politician who quickly rose through the ranks of a hard line Rwandan political party which opposed the Arusha peace negotiations that could have ended the ethnic tension between the majority Hutu population and minority Tutsis and averted the slaughter of up to a million people in just 100 days between April and July 1994.

It all began with an eloquent "four points" speech that Mugesera gave to a crowd of about 1,000 people at a national party rally held at Kabaya in Gisenyi Prefecture, Rwanda on November 22, 1992. In that textbook example of hate speech constituting direct and public incitement to genocide, which was recorded on tape and subsequently widely disseminated throughout Gisenyi and Rwanda, he skillfully used a mix of dramatic, emotional and vitriolic language in his native Kinyarwanda tongue to incite fellow Hutus to massacre Tutsis. His message was simple, his logic Machiavellian: "know that the person whose throat you do not cut now will be the one who will cut yours."

He went on to implore the presumably all Hutu audience not to leave themselves open to invasion, telling them that "[t]hese people called [i]nyenzi [cockroaches] have set out to attack us." He recalled historic instances of ethnic confrontation between Hutus and Tutsis that dated back to colonial days, when the Belgians ruled Rwanda, playing on common Hutu fears and negative stereotypes of Tutsis. He then offered a self-defense justification for extermination, warning that if the Hutus in the audience hesitated to stamp out the "cockroaches", the enemy (Tutsi) would stamp them out instead. Not surprisingly, in the weeks that followed the infamous speech, Tutsis were reportedly murdered throughout the Gisenyi region of Rwanda.

The outrage that Mugesera's speech apparently generated within more moderate Hutu political circles in Kigali led President Juvenal Habyarimana's government to issue a warrant for his arrest for, among other things, inciting others to commit mass murder and threatening national security. Habyarimana's regime, which later collapsed after the former military strongman was killed with the mysterious downing of his airplane at Kigali Airport on the evening of April 6, 1994, could seemingly not afford for Mugesera's public anti-Tutsi vitriol to derail peacemaking efforts aimed at resolving the feud between the two groups through a power sharing deal with the minority Tutsis, some of whom had organized themselves into the rebel Rwandan Patriotic Front and invaded the country from neighboring Uganda in October 1990. Habyarimana was reportedly killed by the Hutu Power extremists within his party, who preferred to exterminate Tutsis instead of share power with them; in other words, the same characters within the Kigali political and military establishment that saw the world through eyes like those of Mugesera.

With the threat of arrest hanging over him, Mugesera escaped to Spain with his wife and five children. He quickly found the Canadian Embassy in Madrid and applied for admission into Canada as a refugee on March 13, 1993. Needless to say, he did not mention the content of his political speeches in Rwanda on his application, which was duly approved, thereby enabling him and his family to subsequently land in Canada in August 1993.

Thus began the long legal saga that has exercised the patience of even the most liberal Canadian government officials, whom instead of prosecuting Mugesera for inciting genocide in Rwanda under the principle of universal jurisdiction (as they later successfully did in a case involving Désiré Munyaneza, another Rwandese refugee), sought to deport him in 1995 by fiat of a ministerial order because he omitted material facts from his application that would have rendered him ineligible to enter Canada. He appealed the deportation order, and as part of that process, an independent immigration board adjudicator reviewed Mugesera's wipe out the Tutsi cockroach speech. On July 11, 1996, the adjudicator endorsed the minister's deportation order. He determined that there was a reasonable basis to believe that the Rwandan political operative had incited murder, hatred, genocide and crimes against humanity and was consequently inadmissible in Canada. He thus ordered that Mugesera be deported forthwith.

Mugesera appealed the order for his deportation through several layers of federal court judges all the way to the highest court in the land. Although he definitively lost his case at the Supreme Court of Canada on June 28, 2005, where eight judges unanimously upheld the decision finding him inadmissible in Canada because of his alleged participation in inciting heinous international crimes, Mugesera has since then managed to evade his date with justice in Rwanda. He has done so by using, and some might say, abusing the generosity of Canadian law which, through a complex immigration system laden with rights of appeal and judicial review of adverse lower tribunal decisions, makes it near impossible to expel alleged war criminals like him back to his country of origin.

To many people, it would likely be shocking to learn that the Canadian government has been trying to deport Mugesera back to Rwanda even before he lost his appeal at the Supreme Court of Canada in 1995. This is no doubt partly a function of Canada's liberal democratic commitment to the rule of law, both domestically and internationally. Somehow, however, Mugesera has always successfully found a legal loophole to exploit in order to stay in the country. As part of this, he has managed to outlast the tenure of seven ministers of immigration, all of whom have kept his deportation file open but none of whom have been able to send him back to Rwanda.

Even more strikingly, he has at times not only taken on the executive branch, but also the judiciary, and in both cases, he seems to continue winning. In an infamous application, Mugesera's lawyer, while appearing before the country's highest court, accused the federal ministers of immigration and justice of manipulation, bias and conspiracy with Jewish individuals and organizations to ensure that his client would be deported. Further, he suggested that the manner in which a vacancy on the Supreme Court was filled with Justice Rosalie Abella, who was one of the most distinguished appeals court judges in the country (and also happened to be Jewish), showed the outright manipulation of the political system for problematic purposes. The Supreme Court of Canada, in an uncharacteristic decision, condemned the "unprofessional and unacceptable" motion for its "unqualified and abusive attack" on the integrity of the judges, for displaying "anti-Semitic" tendencies, and for peddling "irresponsible innuendo."

In the latest drama in the Mugesera story, a delegate of the minister of immigration, in a well-reasoned decision issued on November 14, 2011, conducted a meticulous and comprehensive risk assessment and determined that Mugesera should be deported back to Rwanda to stand trial. His continued presence in the country was basically deemed an affront to Canadian values. The minister then scheduled his removal from the country on January 6, 2012.

Of course, within a couple of weeks, Mugesera's lawyers sought judicial review of that decision as well as an injunction staying the order for his removal in the federal court. They suggested that he will not obtain a fair trial in Rwanda and that he risked being tortured as well as being subject to cruel and unusual punishment, a position that is at odds with the guarantees given by the Rwandan government, and perhaps more significantly, the judicial findings of international judges at the UN International Criminal Tribunal for Rwanda as well as the European Court of Human Rights (all of which have upheld initial decisions transferring genocide suspects back to Rwanda to face trial). A single judge of the Federal Court of Canada found the reasoning in the risk assessment unassailable in his decision issued on January 11, 2012. Justice Michel Shore therefore refused to grant an injunction staying the deportation order pending judicial review of the main decision. It is difficult to imagine in the face of that judicial decision how, in the next hearing scheduled for January 20, 2012, Mugesera will fare any better. This is all the more so considering the June 2005 ruling of the Supreme Court of Canada. Moreover, given the position of the minister, whose executive decision is obviously entitled to deference from the courts, it is therefore almost certain that he will finally be deported back to Rwanda.

Mugesera, apparently stressed by the news of his pending deportation, took ill and was hospitalized for about two days last week. Upon his release from hospital over the weekend, Canadian immigration enforcement officials arrested him in Québec. He is now in detention, presumably pending his deportation from Canada.

In the meantime, according to Canadian media reports, Mugesera, having now more or less exhausted his options within the federal court system, has taken his fight to evade justice in Rwanda to the Committee Against Torture in Geneva, which has apparently requested that the Government of Canada not return Mugesera back to Rwanda before an investigation into the merits of his allegations of possible torture in his homeland.

Although a legal question now arises as to whether Canada is obligated to continue to keep the alleged genocidaire on its territory, as it awaits a ruling from Geneva, as apparently suggested by a last minute decision issued by a provincial court judge in Québec, Ottawa officials have rightly insisted that they will continue with his removal consistent with the decisions of Canada's highest court.

This is welcome news. For it is time that justice is served, not just for Mugesera, but also for the numerous victims of the 1994 genocide that he allegedly helped to foment.

Charles C. Jalloh is an Assistant Professor of Law at the University of Pittsburgh School of Law. He was formerly an Associate Legal Officer in the International Criminal Tribunal for Rwanda and duty counsel to former Liberian President Charles Taylor at the Special Court for Sierra Leone. Comments are welcome at jallohc@gmail.com.

Suggested citation: Charles Jalloh, A Date With Justice: Mugesera's Inevitable Deportation from Canada, JURIST - Forum, Jan. 16, 2012, http://jurist.org/forum/2012/01/charles-jalloh-mugesera.php.



This article was prepared for publication by JURIST's academic commentary editorial staff. Please direct any questions to them at academiccommentary@jurist.org

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