Former Prime Minister of Rwanda during the 1994 Genocide committed against Tutsi Jean Kambanda was arrested in 1997 and pleaded guilty to all charges using a plea bargaining technique before the International Criminal Tribunal for Rwanda (ICTR) prosecution.
This was an event that triggered many comments especially among the genocide deniers who did not expect such a case to end to a guilty plea from the head of a government that planned and executed the Genocide.
To understand this, it is crucial to first have a background on Kambanda’s arrest.
In collaboration with the Kenyan security forces, judiciary, police, and the prosecution of the International Criminal Tribunal for Rwanda (ICTR), NAKI Operation (Operation Nairobi-Kigali ) was started in the morning of July 18, 1997, to arrest genocide fugitives that were hiding in Kenya .
It was a secret operation to an extent that some of organizers refused to share confidential information with Kenyan security services for fear that they could sabotage the plan. This plan to keep it highly confidential was a warrant issued by Louise ARBOUR, the court’s chief prosecutor.
At the beginning of NAKI Operation, a brief meeting was held at the Nairobi Police Headquarters including; some Kenyan security forces who were tasked to arrest the suspects, the Rwandan agents who had to confirm identities of the arrested suspects on top of ICTR investigators and prosecutors who were on monitoring duty.
Since July 18, 1997, the suspects were arrested one after the other and immediately notified about their rights as provided by law in Miranda warning.
These rights include the right to remain silent and refuse to answer questions because anything you say may be used against you in a court of law, right to have an attorney or lawyer, to mention quite a few.
After NAKI Operation the detainees, including former Prime Minister Jean Kambanda, were immediately transferred to the ICTR’s headquarters in Arusha, Tanzania.
Jean Kambanda, who appeared in court for the first time on October 16, 1997 testified how the Genocide against the Tutsi was planned and carried out.
In his initial appearance before the Tribunal’s Trial Chamber 1 comprising Judges Laïty Kama (Senegal), presiding, Lennart Aspegren (Sweden), and Navanethem Pillay (South Africa) Kambanda pleaded guilty on all six counts against him. He emphasized that he admitted his guilt “freely and voluntarily”, with a full understanding of all the charges and the consequences of his pleading guilty.
Jean Kambanda further stated that his plea was unequivocal, and affirmed having reached an agreement with the ICTR’s Deputy Prosecutor Cameroonian Bernard MUNA on all these considerations. The Trial Chamber, considering the factual and legal basis of the case against Jean Kambanda, the latter’s plea of guilty, and his agreement with the Prosecutor, formally pronounced Kambanda guilty of Genocide, Conspiracy to Commit Genocide, Direct and Public Incitement to Genocide, Complicity in Genocide, and Crimes Against Humanity.
As explained, a plea bargain is defined as an agreement in a criminal case between the prosecutor and the defendant where the prosecutor convinces the defendant to plead guilty to a lesser charge or to the original charge with a recommendation of a lighter sentence.
A plea bargain allows the defendant to skip the lengthy process of a court trial and to avoid being convicted of the possible stronger charge.
A plea bargain is legally binding and it is a contract between the prosecutor assigned to the case and the defendant named in the case. Both parties involved in the contract must abide by the terms of the agreement.
Some common terms of plea bargaining include pleading guilty on a specific date, cooperating in the investigation of another offense, or testifying against a co-defendant. If any of the terms of the agreement are broken then the bargain may be revoked if the defendant fails to satisfy their terms of the agreement.
This technique used by prosecutors is used when a criminal prosecution is before the prosecution, and the prosecution collects evidence on the crime committed before taking the case to court with evidence that is relevant to the crime committed.
The prosecutor uses all tricks to get evidence of the crime committed and asks the suspect to tell him the truth about the crime committed by him and assures him that he will ask him for a lesser sentence before the judge.
In addition to requesting a lesser sentence for a crime, he or she may also be able to convince him of other things, including money, so that he can get the evidence that makes it easier for him to work.
However, the prosecutor may apply for a lesser sentence in court because he has shown co-operation during the collection of evidence, but, he/she would not have the final say in determining the sentence for the crime committed because he or she is also a party to the lawsuit.
Only the judge has the power to determine the sentence.
When Kambanda arrived before prosecutor Bernard MUNA to find out what information he needed about the crimes of genocide he used this method of Plea Bargaining to convince him to apply for a lesser sentence, to give him money, to give his family’s asylum in European countries.
He was also assisted in obtaining asylum and obtaining employment after serving his sentence.
Before the prosecution and before the court, Kambanda pleaded guilty to all the charges in the hope that he would have his sentence reduced and given what he was allowed to do.
Although this standard procedure is used between the prosecutor and the defendant as we have seen above, it is not a principle that the judge implements all the prosecution’s conclusions.
Arusha tribunal judges in Senegal’s LAITY KAMA, Swedish LENNART ASPEGREN and South African NAVANETHEM PILLAY, denied the prosecution’s request for Kambanda, including a shorter sentence of 15 years.
After pleading guilty individually to Plea Bargaining’s case, on September 4, 1998, the International Criminal Tribunal for Rwanda (ICTR) convicted him of genocide; genocide incitement; crimes against humanity and he was sentenced to life imprisonment.
Jean Kambanda, later on, appealed the sentence, but since he was the one who pleaded guilty to all the offenses, the sentence was upheld in the Arusha Appeals Chamber on October 19, 2000 and he was sent to Mali in Koulikoro Prison where he is serving a life sentence.
Meanwhile, Plea Barganing is commonly used by law, but some countries do not accept its application because it has been found that it can lead people to confess to crimes they have committed under duress or pressure.
There are also cases where this method is misused by some people as a result of assurances that they may put crimes on the head of others who would be punished for crimes they have not committed.
At the prosecution level, this method is useful because it facilitates the work during collection of evidence and during litigation.
This method, if not used properly by the prosecution, can also cause the laziness of the prosecution not to dig to the root of the crime when it chooses to believe that everything it has been told is but true.