WHEN the government of Rwanda recently applied to the United Kingdom’s secretary of state for the extradition of five alleged genocidaires, it claimed a “sea change” had taken place in the way Rwanda’s courts operated. Concerns expressed by the UK courts in earlier judgments had now been met, and the suspects should be extradited to face trial in their home country.

But when the UK’s high court of justice examined the evidence, the judges disagreed with this assessment. In their important recent decision, they reviewed crucial information on the situation in Rwanda and refused the appeal saying that if the five were extradited to their home country they “would be at risk of a flagrant denial of fair trial”

Rwanda’s first extradition attempt, brought in 2007/8, almost saw a hand-over of the suspects. The UK magistrate who heard the application sent the matter to the secretary of state who in turn signed the extradition orders. The four then successfully appealed, however, arguing they would not have a fair trial.

Some years later the Rwandan government tried a second time, but in December 2015 the courts once more found against extradition. Now Rwanda’s appeal, and extradition, have once again been dismissed. It seems the end of the road – at least until some dramatic improvement answers the concerns of the UK courts.

But why have the UK’s higher courts refused to deliver the suspects? All these courts make clear that it is not because they are unaware of the horrors of the genocide, nor because they have ignored Rwanda’s efforts to raise the criminal justice system to “acceptable standards”.

Rather, it is because the UK courts are not willing to use an extradition order as a reward to encourage further improvements in the Rwandan justice system. Such an approach “might serve a political aspiration,” says the latest decision, “but would amount to a denial of legal principle.”

Instead, the courts started with the political reality in which the Rwandan judicial system operates: “If the political regime is autocratic, betrays an intolerance of dissent, and entertains scant regard for the rule of law, the judicial arm … may be infected by the same vices”. Even if the courts were not “infected”, they may be subjected to political pressures by those who are, and thus be unable to deliver fair justice to those on trial. And, while some judges were independent, it required “a high order” of courage on their part.

The UK courts heard “established evidence” of continuing executive interference in “political cases” and that the Rwandan government did not respect the “presumption of innocence”. This and other evidence showed that, if anything, Rwanda had become even more of an authoritarian state than in 2007/8. And, noted the appeal judges, the requests for extradition came from a state that recently “instigated political killings” at such a level that British police had warned Rwandans living in the UK of “credible plans” by Rwanda to kill them.

So why would this judgment interest anyone outside Rwanda?

The UK appeal judges were concerned about an intolerant political leadership that ignores the rule of law and threatens judicial independence. Each time an ANC or government functionary flouts or ridicules a court decision in SA, precisely the same impression is created. Given the threat to judicial independence in a number of other African countries, this is a widespread and deeply troubling problem.

And, when leaders on this continent urge pulling out of the ICC as Africa’s own courts are up to the job, they should be aware of the exacting international human rights standards to which those courts would be held.

Just ask Rwanda.


First published in the Financial Mail