Case linked to Rwanda genocide has Wichita lawyer crisscrossing Africa
06/08/2010 7:40 AM
08/08/2014 9:57 AM
Lawyer Kurt Kerns found himself traipsing through some of the most dangerous, politically torn parts of Africa looking for witnesses in a criminal case back in Wichita. "I was walking through the Congo, and I realized I'm the only white guy on the street in a place the State Department warns Americans shouldn't be traveling," Kerns said. "But what do you do? You have to go where the witnesses are."
Trekking through Tanzania, Congo and Burundi, Kerns tried to recount what happened more than 15 years earlier for the defense of a man facing trial in Wichita, accused of genocide in Rwanda and ordering the deaths of hundreds of people.
Federal prosecutors say the case of 83-year-old Lazare Kobagaya is one of the first criminal prosecutions of its kind on U.S. soil.
Kobagaya's family in Kansas were shocked when the allegations surfaced in 2009.
"The family, of course, went from anger to surprise to all the emotions you can think of," said Andre Kandy, a Wichita dentist, of the charges against his father. "We all know our father as a righteous man. To be accused of that level of violence, on such bogus charges, you can understand our feelings."
Prosecutors say Kobagaya unlawfully obtained U.S. citizenship three years ago in Wichita by lying on government forms about living in Rwanda during the slaughter of more than a half-million people.
That sent Kerns to the other side of the world in a case he estimates has surpassed $1 million in expenses for both sides combined.
Such cases can be treacherous for lawyers and witnesses, Kerns said, due to continued political strife in Africa.
Last week, Human Rights Watch fought to keep from turning over information identifying witnesses to Kerns.
The group's lawyers said witnesses for the prosecution and defense in genocide trials in Rwanda have been beaten, harassed and charged with crimes because of their testimony.
"This pattern of violence and harassment has continued unabated and has victimized a sizable number of potential or real witnesses," the legal brief said.
Kerns said Kobagaya's testimony on behalf of a former neighbor being prosecuted in Finland for genocide led to the current charges in the U.S.
"For 15 years, this guy's not on anyone's radar," Kerns said.
Prosecutors say Kobagaya ordered the deaths of hundreds of people in the Nyakizu region of the southern Rwanda.
An estimated 500,000 to 800,000 people were killed during 100 days of ethnic attacks from April to July 1994. Members of the Hutu ethnic group slaughtered those of Tutsi heritage.
Christina Giffin of the Department of Justice's Office of Special Investigations said in court filings that this is likely the first criminal case in the U.S. involving genocide.
The Department of Justice declined to comment for this story.
Kerns said most of the witnesses he found during the past year still lived in United Nations refugee camps after fleeing to neighboring countries.
"It's sad, because 15 years later, they are still refugees," he said.
Kobagaya lived in one of the those refugee camps, his son said, before he moved to Kansas four years ago. Kobagaya currently lives with a son in Topeka, awaiting trial.
For years, Kobagaya's name wasn't among thousands of records that have been collected from the Rwandan genocide, Kerns said.
Kerns went to the headquarters of the International Criminal Tribunal for Rwanda, which he said keeps a database of about 12,000 interviews taken following the 1994 killings.
"Nobody mentions his name," Kerns said.
Kobagaya's name did not appear among dozens of cases being prosecuted by the tribunal, Kerns said.
The Finland interview
Then the Finnish government charged a former Baptist minister, Francois Bazaramba, with crimes against humanity in 2007.
Bazaramba is accused of planning and carrying out the deaths of 5,000 Tutsis. He sought asylum in Finland in 2003.
Finnish authorities are trying Bazaramba, saying he could not get a fair trial if sent back to Rwanda.
Kerns said Bazaramba's lawyer came to the U.S. to interview Bazaramba's former neighbors from Rwanda.
Kobagaya said he didn't know Bazaramba participated in the genocide, Kerns said. Kobagaya gave video testimony in Bazaramba's defense.
"Then all of the sudden, he became a bad guy, too," Kerns said. "His name didn't come up until he gave that interview."
Kerns said such actions have stifled attempts to find people willing to testify for Kobagaya.
Rwandans "are a country in dictatorship," Kerns said. "They don't have a First Amendment, so they can't say what they want to say."
In its fight against turning over information to the defense, Human Rights Watch lawyers said last week that one person the group interviewed in Rwanda in 2008 received a phone threat after the interview.
"We have not seen the witness again after the threat," the group said in its legal filings.
Still, Kerns said he's found witnesses willing to testify in Kobagaya's defense.
No subpoena power
Bringing them back is another matter. Kerns said the U.S. has no subpoena powers outside its borders.
That's one reason Kerns said he's filed a request to have the case dismissed.
"In this country, you have a right to a defense and can compel people to testify, even if they don't want to," Kerns said. "But in this case, we can't subpoena witnesses because they're in Africa. That's why we think this is unconstitutional."
This is not Kerns' first case involving potential war crimes.
He is one of only about two dozen U.S. lawyers who practice before the International War Crimes Tribunal in the Netherlands. In 2003, Kerns represented a Croatian commander charged with the torture of Bosnians a decade before.
Prosecutors in the current case say their witnesses tell them Kobagaya worked with Bazaramba in planning and carrying through the killings.
"Several characterize him as a leader of the genocide, acting in concert with other powerful men in the community to ensure that the Tutsi population of the area did not escape violence," U.S. authorities said in a letter to the Finnish government requesting records from its case.
"The witnesses allege that Kobagaya incited others to commit arson, assault and murder by directing people to commit those acts and threatening those who tried to decline to participate," the letter said.
The U.S. has no criminal jurisdiction over crimes committed abroad, but it can prosecute someone for lying on a naturalization form, which specifically asks applicants if they have participated in genocide.
Prosecutors say Kobagaya lied on immigration and citizenship documents, saying he had moved from Rwanda to Burundi in 1994. He also checked a box saying he had not participated in genocide.
If convicted, Kobagaya faces deportation.
'Lived by the Bible'
Kobagaya's son in Wichita said those accusations don't reflect the father he knows — a gentle man who loves gardening and was devoutly religious.
"He has always lived by the Bible," said Andre Kandy. "He loves his church. Even when he lived in refugee camps, he had to go to church."
In Wichita, Kobagaya attended Immanuel Baptist church, Kandy said.
Kobagaya faces trial in October in federal court in Wichita.
"We are looking forward to taking this case into the justice system," Kandy said, "so we can clear our father's name."