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The Business Day
By Alan Wallis

SPAIN wants him. Rwanda wants him. Given his questionable asylum status, SA seems to want him too. And let’s not forget there is also someone who wants him dead. Rwandan former general Kayumbe Nyamwasa is proving to be quite popular, and not in a good way.

In 2008, Spanish authorities issued an arrest warrant for Nyamwasa, and 39 other high-ranking Rwandan army officials, after a Spanish court found that a prima facie case exists against him for the murder of four Spanish aid workers and a host of other atrocities committed under his command in the Democratic Republic of Congo and Rwanda . Rwanda claims Nyamwasa was responsible for a fatal grenade attack in Kigali early this year .

His arrival in SA came after his close relationship with Rwandan President Paul Kagame soured while he served as Rwanda’s representative in India. Following his recall, he fled to SA and has been granted asylum. It is only in the aftermath of an attempted assassination that questions were raised about his eligibility for asylum.

South African immigration and refugee law expressly forbids individuals implicated in serious crimes from obtaining asylum, yet SA’s authorities swiftly granted him asylum. A number of questions spring to mind and warrant informed speculation.

Nyamwasa’s presence in SA has been well documented. Why then has Spain only now made an extradition request? It could be because the Rwandan army has been implicated in war crimes in the recently leaked draft United Nations (UN) report documenting gross violations of human rights in the Congo. Nyamwasa’s known presence and high rank in the region at the time corresponds with a number of the horrific events highlighted in the draft report.

Rwanda’s motive seems more suspect. Nyamwasa’s alleged involvement in the grenade attacks may be a convenient cover to secure Nyamwasa’s custody in Rwanda. Nyamwasa and Kagame shared a close relationship and it may simply be that he knows too much about what happened in the aftermath of the Rwandan genocide and that silence will be easier to maintain on Rwandan soil. If Nyamwasa is forced to stand trial, he may take Kagame down with him.

This brings us to SA. SA was all too willing to grant Nyamwasa asylum. Whatever reasons the government has, it now has to decide whether to accede to the extradition requests. This decision is not one that can be made behind closed doors as a number of legal and international obligations come in to play.

SA could refuse both requests. It is not party to extradition agreements with either Rwanda or Spain. The Extradition Act, however, stipulates that individuals are liable to be extradited, even absent an agreement, if the president consents in writing. SA could, in terms of national and international law, argue that it is bound by the principle of non-refoulement not to extradite a requested individual if there is a reasonable belief that his fundamental rights will not be respected by the country requesting extradition. Given the suspicion that Nyamwasa will face persecution if surrendered to Rwanda, SA may be justified in refusing Rwanda’s request. But similar justification does not exist in respect of Spain’s request.

Still, even if SA refuses the requests, it may have to explain why it granted Nyamwasa asylum despite his unlikely eligibility. The decision could be subject to judicial review and set aside. If this transpires, his continued presence in SA would be unlawful.

The reality is that the context in which these decisions are to be made has changed since the draft UN report was leaked. Nyamwasa is a potential source of some very valuable information. It is probable that he was involved in the Rwandan army’s conduct documented in the leaked report. He could play a pivotal role in shedding light on Rwanda’s role in crimes committed in the Congo and the identity of the perpetrators, and this must be part of the decision-making process.

In this changed context, SA may have found itself up against a wall and, unless it is keeping Nyamwasa here for strategic reasons, Spain must be the preferred destination.

– Wallis is the International Justice Project lawyer at the Southern Africa Litigation Centre.




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