Felicien Kabuga
The International Residual Mechanism for Criminal Tribunals Chambers, after receiving a medical report declaring genocide suspect Felicien Kabuga as unfit to stand trial started hearing from the three independent medical experts, authors of the report since yesterday.
The Report of 2023, written by the three experts concluded that the accused could not “participate meaningfully in his trial”
During the March 15, 2023 hearing, Presiding Judge Bonomy started the examination by the Bench of Professor Harry Gerard Kennedy, Forensic Psychiatrist, and asked if the same conclusion was reached for the Expert Report of 2023 as in the 2022 report which showed Kabuga did not complete most tasks asked by the experts.
Professor Kennedy explained that Kabuga did not complete many tasks and that even those completed indicated lack of ability.
The Expert Report of December 2022 had concluded that “Kabuga was not able to understand details of the evidence or at best was not able to understand more than immediate or face-to-face evidence.”
Professor Kennedy testified that, at the time of the 2022 Report, “the accused was equivocally unable to understand the factual evidence and that, as of this day, Kabuga cannot understand evidence or differentiate questions put to him in court.”
For instance, during the defendant’s interview, on 17th February 2023, the experts found that “he was unable to appreciate the significance of some of the questions put to him in court.”
The expert further told the court that Kabuga, as recorded in 2022, “was not able to make any judgment or give advice to his counsel due to frontal lobe deficit.”
The deficit is scientifically the damage of higher functioning processes of the brain such as motivation, planning, social behavior, and language/speech production.
Professor Kennedy explained that his position was equivocal as then as it was unclear whether the defendant’s deficit was fixed or only temporary.
“As of now, the condition of the accused has deteriorated rather than improved and he is not capable of instructing his Counsel,” Kennedy said.
Professor Kennedy explained that Kabuga is less able to understand the consequences of the proceedings to the point where there is now a material change in his capacity to understand them.
Professor Kennedy stated that he believes due to loss of mental capacities, Kabuga would not be able to testify and that his belief was consensual among the three experts.
While there is a small possibility that Kabuga’s capacity may return Professor Kennedy deemed a substantial improvement “very unlikely at his age”
Judge Bonomy told the expert that under such a condition, the Prosecution had agreed to the possibility of Kabuga giving evidence through written statements and to foregoing cross-examination.
The Judge asked if this would change the expert’s opinion on the accused’s capacity to testify, but Prof. Kennedy explained that he would need more time to reach a conclusion but that this would make a difference as live cross-examination was the biggest difficulty since Kabuga is capable of expressing his will and preference to his Counsel.
Regarding the Expert Report of 3rd March 2023, Judge Bonomy asked the expert if the fact that Kabuga was still recovering from the effects of three separate illnesses during their evaluations had influenced their views about his capacities.
Professor Kennedy explained that while there is a possibility of transient matters, such as mild cardiac failure in Kabuga’s case, the evidence of the deterioration of capacity has been objective and continuous, and as such larger than the illnesses.
Judge Bonomy asked Professor Kennedy if there was a possibility Kabuga was giving the impression that he was suffering from a greater degree of mental incapacity than he actually is and if he is confident that the accused is not faking his condition to any extent.
The expert testified that it is always possible for a psychiatrist to be deceived and that one must always have that in mind. He added that Kabuga is also very clear now that he would rather not see the trial proceed.
Nonetheless, taking into account the totality of the information available, Professor Kennedy and other clinicians working regularly with the accused concluded that the deterioration of the accused’s condition “was real.”
The judge asked if it is possible to conduct the trial without bias of factual errors but on the criminal aspects, the expert said that the trial of facts would likely have to proceed without Kabuga as his ability to express interest and to convey his will and preferences is likely to be fleeting and can only reduce over time.
Kabuga is charged with six counts: one count of genocide, one count of direct and public incitement to commit genocide, one count of conspiracy to commit genocide, and three counts of crimes against humanity here persecution on political grounds, extermination, murder.
