Blow to Felicien Kabuga as court declines to unfreeze his wealth in Kenya

Felicien Kabuga of Rwanda during his first appearance before the Mechanism for International Tribunals on 11 November 2020 in The Hague. [UN IRMCT]

Rwanda genocide suspect Felicien Kabuga has suffered a blow after the High Court declined to unfreeze his assets in Kenya.

The Anti-Corruption Court Judge Esther Maina has affirmed orders issued by Justice Muga Apondi 15 years ago.

Justice Maina rejected Kabuga's son Nshimyumuremyi Donatien's plea to allow his aged mother access rent from the property known as Spanish Villas at Kilimani, Nairobi.

"I have considered the orders issued by Justice Muga Apondi on the two applications. The matter went on appeal and the ruling by the Judge on the preliminary objection was sustained," she said.

"I have considered the two applications and I would agree with Justice Muga Apondi, I see no reason to set aside the ruling. The judgment of Justice Apondi is the judgment of this court."

The case, filed in 2008, sought to have his property forfeited and its proceeds used to compensate genocide victims and their families. At the time, Kabuga was a fugitive and it was impossible to know his whereabouts.

Nevertheless, his wife Josephine Mukazitoni mounted a battle against the State, arguing that the property was co-owned and therefore could not be disposed of as she had a stake in it.

Following Mukazitoni's death in 2017, Kabuga's son Donatien asked the court to allow him to continue with the battle on behalf of her estate.

Donatien, who lives in Belgium, claimed that his mother died in 2017 in the same country and he subsequently got orders from Kenya's family court to manage her estate.

In the case, Kabuga is the first respondent while the second respondent is his wife. The DPP argued that Spanish Villas was acquired through proceeds of crime.

Kabuga, who had been on the run for 26 years, contested an extradition order but France's top appeals court ordered the 91-year-old father of 11 be transferred to the UN Residual Tribunal at the Hague to stand trial on charges of genocide and crimes against humanity.

Donatien filed the succession case in 2019 arguing that he needed the court's greenlight to manage his mother's estate and to enable him to join the forfeiture case as the administrator of the estate.

"I cannot defend or prosecute the said pending suit without first obtaining the letters of administration," he argued.

In the case, Mukazitoni was said to have left 10 people who depended on her; Pauline Musanabera, Felicite Makudemali, Bernadette Uwamariya, Winifred Musabeyezu, and Seraphine Uwimana.

Others are Jeanne Mukanziza, Innocent Twagirumukiza, Claudine Twagirihirwe, Angelique Uwihirwe and Alain Habumukiza.

Kabuga's wife, in her submissions filed before the anti-corruption court in Nairobi, argued that the Government has no proof that the contested property was acquired through crime proceeds.

She also claimed that there is no proof that Kabuga used the rent collected from the house to evade arrest.

Documents in court show that the house fetches at least Sh84,000 in rent each month.

"The applicant (SPP) has not demonstrated that Mr Felicien Kabuga is using the income generated in Kenya to avoid capture and substantially interfere with the prosecution witnesses. On the contrary, the applicant attaches proof that the funds are actually wired directly to the second respondent's (Mukazitoni) accounts. Furthermore, there is no proof that the property was unlawfully acquired or relates to any crime," she argued.

But the DPP argued that there is no evidence to show that Mukazitoni and Kabuga are joint owners.