Date: 20100428
Docket: IMM-5080-09
Citation: 2010 FC 463
Ottawa, Ontario, April 28, 2010
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
CHARLES
MUKASI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Charles Mukasi from a decision of the
Refugee Protection Division of the Immigration and Refugee Board of Canada (Board).
Mr. Mukasi challenges the Board’s decision to deny his claim for refugee protection
on the basis that he was complicit in crimes against humanity and thereby
disqualified on the basis of art. 1F(a) of the United Nations Convention
Relating to the Status of Refugees as incorporated by s. 98 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
a.
Background
[2]
Mr. Mukasi
is a citizen of Burundi. In 1981 he became an active member of a
prominent political party in Burundi known as “Union pour le
progrès national” (UPRONA). It is undisputed that after voluntarily joining
the party in 1981 Mr. Mukasi rose through the ranks of UPRONA where he
held in succession the following positions:
(a) Director for Radio
National (the state-run radio station);
(b) National Party
Secretary;
(c) Opposition Deputy in
the National Assembly; and
(d) Party President in
1994.
[3]
It
is also undisputed that since at least the 1960’s Burundi has been engulfed
in an ethnic conflict between the Hutus and Tutsis, including periods when mass
killings of civilians took place on both sides. The documentary evidence
before the Board indicated very clearly that the Tutsi-dominated Burundian
military had, from time to time, been responsible for the indiscriminate
killing of many Hutu civilians. This was a history that Mr. Mukasi has
never challenged.
[4]
From
1962 to 1993 UPRONA held either nominal or actual political power in Burundi. In 1993
UPRONA was defeated in democratic elections but, within the year, President
Ndadaye was assassinated by a faction of Tutsi military officers. In a report
by Amnesty International dated March 22, 2001 the litany of ethnic killing in Burundi is described
in detail including the following description of the situation after the
assassination of the President:
As news of the assassination of President
Ndadaye spread, thousands of Tutsi civilians as well as Hutu supporters of the
former ruling party, the Union pour le progrès national (UPRONA), Union for
National Progress, were killed in reprisal by Hutu civilians. Within four days
of the coup attempt, mass and indiscriminate reprisals for these killings were
being carried out by the Tutsi-dominated security forces and Tutsi civilians
against the Hutu population. Hundreds of thousands of Hutu, as well as some
Tutsi, fled the violence, mainly to Tanzania
and Zaire (now the Democratic Republic
of Congo) and hundreds of thousands of others, mainly Tutsi, were internally
displaced. The majority of refugees and internally displaced have yet to return
to their homes.
Leaders and allies of UPRONA organized
themselves to resist the return of power to FRODEBU control. The Tutsi
political opposition, backed by the Tutsi-dominated army, was reluctant to
relinquish the power it had enjoyed since independence, and continued to force
political concessions from the weakened FRODEBU government which could not
consolidate its position. Tutsi youths formed armed groups, with the knowledge
and even assistance of Tutsi soldiers. Many government supporters, particularly
Hutu, were killed during such action. To counter this violence and what they
considered as the inability of the FRODEBU-led government to protect its
members and supporters, armed Hutu groups sprang up in and around Bujumbura and
were themselves responsible for abuses. From 1994 onwards, a number of
Hutu-dominated armed opposition groups, formally allied to political parties in
exile, began an open war against the Tutsi-dominated armed forces and their
political allies, killing many unarmed Tutsi civilians. Tutsi militias also
operated, often in open collusion with the armed forces, carrying out political
assassinations and extrajudicial executions, particularly of prominent Hutu.
The violence spread country-wide, and Hutu and Tutsi who had previously lived
together effectively separated, with urban centres dominated by Tutsi. Both
armed opposition groups and the armed forces were responsible for large numbers
of killings of unarmed civilians.
The FRODEBU government continued to
weaken, as FRODEBU parliamentarians and officials were assassinated, arrested
or fled into exile. The government requested international security assistance,
a move violently opposed by UPRONA and the armed forces. In July 1996, Major
Pierre Buyoya returned to power in a coup with the support of the armed forces,
which he claimed to have carried out to prevent further human rights violations
and violence; many observers saw it as the completion of the October 1993 coup
attempt. It also ended discussion of international security assistance.
Nationally the new government employed a practice of forcibly relocating or
''regrouping'' the Hutu rural population into camps, a counter-insurgency
strategy developed to undermine Hutu-dominated armed opposition groups by
creating military zones and by removing any possible source of support or
cover. Whole areas were cleared of civilians and homes and plantations
destroyed. Furthermore, the war which broke out in the Democratic Republic of
Congo (DRC) in late 1996 not only led to the expulsion and return to Burundi of tens of thousands of
Burundian refugees but also meant that armed opposition groups lost bases in
eastern DRC, including support they were deriving directly and indirectly from
refugee camps. By 1997 the areas of conflict had been reduced.
[Footnotes omitted]
[5]
During
the late 1990’s disagreements within UPRONA came to the surface.
Mr. Mukasi led a hard-line faction within the party which opposed aspects
of President Buyoya’s plan for a peaceful resolution to the ethnic conflict.
This political disagreement led to Mr. Mukasi being targeted by the
Burundian authorities as a political trouble-maker. He claimed to have been
subjected to a number of politically-motivated arrests and periods of detention
between 1997 and 2005. In September 2005 Mr. Mukasi left Burundi and on October
3, 2005 he entered Canada from the United States and
immediately sought asylum.
A. The
Decision Under Review
[6]
The
Board’s reasons indicate that it understood and applied the correct legal test
for determining whether, as a senior leader with UPRONA, Mr. Mukasi should
be excluded from refugee protection under s. 98 of the IRPA. The Board also
found that UPRONA was not an organization with a brutal and limited purpose.
The Board then examined Mr. Mukasi’s conduct in terms of whether he had
been complicit concerning the undisputed atrocities and genocidal acts carried
out by the Burundian military.
[7]
In
holding that Mr. Mukasi had been complicit the Board found that he had
glossed over the numerous massacres of Hutu civilians by the Tutsi-dominated army
after October 1993. It noted his steady rise in influence within UPRONA after
1989 including positions as a Director of National Radio, National Party
Secretary, Opposition Deputy in the National Assembly, speech-writer for the
President, and finally, Party President.
[8]
The
Board found that Mr. Mukasi was aware of the conduct of the armed forces
during the October 1993 coup and afterwards (including the assassination of
President Ndadaye) and it accepted a UNHCR finding that UPRONA was involved in
the military coup. In the following passage the Board rejected
Mr. Mukasi’s argument that the war crimes committed by the Burundian armed
forces did not involve UPRONA:
[38] I find that the claimant, as a
senior member of UPRONA, was aware of the above and was in a position to shape
and form UPRONA’s policies. During the hearing, when asked about the army’s
role in the killing, the claimant maintained that the army responded to the
crisis at the time. He also stated that the army intervened to stop the atrocities
and genocides that were being committed by the supporters of FRODEBU. He also
stated the Constitution did not allow the members of the army to join a
political party; therefore, it would not be fair to associate them with UPRONA.
I find that the claimant made these statements to minimize the atrocities
committed by the army. Also, given the traditional link between UPRONA and the
army, I find that the claimant’s attempt to defend the army, and his further
attempt to minimize the relationship between UPRONA and the army, not credible,
and not supported by the documentary evidence. I also find that during the
civil war, during which time the claimant was in very high positions with
UPRONA, the documents are silent on what, if any attempts, UPRONA made to condemn
the army’s actions or to stop it. This, together with the fact that the
claimant is believed to have been associated with the 1993 coup attempt, and
his continued efforts to undermine the attempt to power-sharing arrangements,
further gives me reason to believe that the claimant’s degree of knowledge was
high.
[Footnote omitted]
[9]
The
Board concluded by finding that, despite his awareness of UPRONA’s support for
violence, Mr. Mukasi willingly joined the party in 1981, willingly remained
in it, and willingly moved up its ranks to the position of Party President in
1994. The Board concluded by finding that there were serious reasons for
considering that Mr. Mukasi had been complicit in crimes against humanity
which excluded him from refugee protection. It is from this decision that
Mr. Mukasi brings this application for judicial review.
II. Issue
[10]
Did
the Board err in its assessment of the evidence and, in particular, did it
reach its decision on the basis of a selective application of the evidence?
III. Analysis
[11]
The
issue raised on this application is one of mixed fact and law and will,
therefore, be reviewed on a standard of reasonableness: see Murcia v. Canada (Minister
of Citizenship and Immigration) (2006), 2006 FC 287 at para. 18, 146 A.C.W.S.
(3d) 699.
[12]
It
was argued on behalf of Mr. Mukasi that the Board erred in making a
finding of complicity on the basis of a selective assessment of the available
evidence. Mr. Mukasi asserts that he consistently promoted peaceful
solutions to the ethnic divisions that engulfed Burundi during the
period of his political involvement. He says that the Board erred by relying
upon vague associations in the documentary evidence between UPRONA and the Burundian
military, and more particularly, between his conduct and the conduct of the
military in its brutal retaliatory campaigns targeting Hutu civilians.
[13]
Mr. Mukasi’s
attempt to disassociate his political work on behalf of UPRONA from the
atrocities that were carried out by the Burundian military was not accepted by
the Board and for good reason. There was ample evidence in the record to
establish a link between the military forces and Tutsi militias that
perpetrated these brutal acts, Mr. Mukasi and UPRONA. Examples of this
included the following from independent third-party sources:
The former single party, founded in 1957
and legally recognised in 1960, UPRONA, retained a close relationship with the
armed forces under the presidencies of Michel Micombero, Jean Baptiste Bagaza
and Pierre Buyoya. It was heavily defeated by the Hutu-dominated Front pour
la Démocratie au Burundi, Front for Democracy in
Burundi, in Burundi's first multi-party elections
in 1993. UPRONA and the security forces were unwilling to cede power and were
closely associated with violence by the Sans échec ("Without
Failure") and other Tutsi militia in the 1993 to 1996 period. Senior
members of UPRONA including Charles Mukasi, Libère
Bararuntyeretse and Alphonse Kadege were among the civilians
associated with the 1993 coup attempt. Charles Mukasi, has also been accused of
undermining the 1994 Convention of Government power-sharing arrangement and of
orchestrating some of the spiralling violence which enabled Pierre Buyoya to
return to power in 1996.
[Emphasis added]
Source: Amnesty International March 22,
2001
[…]
UPRONA
The third player in this violent field is
the official opposition UPRONA party. Given a disproportionate share of power
in the September 1994 Government Agreement, it has since then seemed bent on
getting even more, raising doubts as to its real desire to see the agreement
work. Many people believe that its ultimate aim is to regain by hook or by
crook the power it lost through the ballot box in June 1993. Even if UPRONA
cannot be entirely lumped together with the extremist micro-parties and armed
Tutsi militias, it is now if not a party of extremists at least a party led by
extremists. Its proclaimed desire to 'solve the crisis in a peaceful fashion'
seems, to say the least, disingenuous. For example, when an OAU mission came to
Bujumbura in mid-July to try to initiate new discussions between the
protagonists of the political conflict, the UPRONA chairman Charles Mukasi used
the fact that the OAU mission was proposing Addis-Ababa as the venue as an
excuse to refuse to attend and to declare:
'We suggest that if people have anything
to say to one another they should do so within Burundi's borders .... We are not against
anything whatsoever. We are rather in favour of an idea which is the Peace
Process. This should be created and developed within the borders of the country
.... If the international community became exasperated and lost interest in
what is happening to us I would be very happy because this would force us to
move forward rapidly'.
The FRODEBU Chairman Jean Minani who
supported the idea of taking the talks to Addis-Ababa retorted that
'he [Mukasi] knows very well that talks
here in Burundi are nearly impossible, when the city of Bujumbura is being held
hostage by Tutsi militias patrolling, doing night rounds, killing people
everyday without the police, the gendarmes or the Army being able to do
anything'.
UPRONA public positions are mostly of the
same style, seeming to permanently pretend that there is no major problem, that
Tutsi militias do not exist, that Tutsi extremist parties are in fact
democratic and that it is only the ill-will of FRODEBU which blocks the
political dialogue. In such a climate its constant call to FRODEBU moderates to
share with them the fight against FDD Hutu extremists does seem rather biased.
Source: UNHCR August 1995
[…]
Correspondents say Mr Mukasi, a
politician believed to be supported by hardliners in the military, refused to
attend the talks and sacked party representatives who did. Burundi’s neighbours have linked a
lifting of sanctions to progress in the talks.
Source: BBC News, October 8, 1998
[…]
Continued
Tutsi domination of the army lay at the centre of Burundi’s fragile security situation, and it was the army that now
imposed conditions for a return to normality. Three months of talks were
required before a new president was chosen, elections being out of the
question. During these negotiations, UPRONA and other opposition parties were
able to negotiate a deal that gave them forty per cent of executive posts. FRODEBU
accepted this arrangement in order to reassure the Tutsi minority. Cyprian
Ntaryamira, the rather colourless agricultural minister, was eventually chosen
as president.
On
6 April 1994, Ntaryamira died with Rwanda’s President Habyarimana when their aircraft
was shot down over Kigali. The problem of the presidential
succession now resurfaced. FRODEBU wanted the popular Sylvestre Ntibantunganya
as president, but the opposition, led by UPRONA, set conditions that were
accepted on 10 September. These gave UPRONA an even greater say in power. This
alienated the radical wing of FRODEBU, which distanced itself from the interim
president in protest and in August created the National Council for the Defence
of Democracy (CNDD) and its armed wing led from exile by Leonard Nyangoma.
FRODEBU
retained the presidency, but felt constrained by fears of another coup
or genocidal civil war to concede an ever-growing share in government and
administration to UPRONA and other opposition parties. The successful
assumption of power by the Tutsi-dominated Rwandese Patriotic Front (RPF) in
neighbouring Rwanda in 1994, merely emboldened UPRONA and
the Burundian army. A political agreement, brokered by the UN and concluded on
11 September 1994, stipulated that the position of prime minister and ten other
cabinet posts (of a total 23) would go to the opposition parties. The defence
and justice portfolios were to be held by political ‘neutrals’, meaning a
soldier and a judge (effectively Tutsi). Within the local administration and civil
service, 45 per cent of posts were also reserved for opposition nominees. The
agreement deprived the National Assembly of the power to dismiss the
government. It introduced a National Security Council to which FRODEBU and the
opposition each nominated five members, and which has an effective veto over
the executive. In short, the electoral victory of 1993 was virtually nullified
and the president prevented from reforming the army or administration or
otherwise threatening what the Tutsi minority saw as its vital interests. Even
this was insufficient to deter UPRONA’s leader, Charles Mukasi, who remained
outside government, from making additional demands aimed at emasculating
FRODEBU. In effect, UPRONA seemed determined to exploit the government’s very reasonable
fear of a complete breakdown in order, to recoup the loss of power suffered in
the elections of 1993. This involved some neatly judged brinkmanship on the
part of UPRONA and the army, and predictably led to catastrophe.
Source: Africa Watch, Burundi: The politics of intolerance,
African Security Review, Vol. 8 No. 6, (1999)
[14]
Mr. Mukasi
complains that the testimonials he tendered to contradict the third-party sources
received inadequate attention from the Board. I reject this argument. The
Board’s reasons indicate that Mr. Mukasi’s materials were appropriately
considered but rejected on the basis that they were not objective. It is not
the role of the Court on judicial review to reweigh the evidence and it would
not be appropriate for me to substitute my own views of the evidence for those
of the Board. Even if I had that authority I would not have reached any
different conclusion from that of the Board. Much of what Mr. Mukasi
presented in his own defence was highly rhetorical, unbalanced and, in parts,
inflammatory.
[15]
The
evidence Mr. Mukasi put forward was in sharp contrast to the third-party
documentary record and there was a strong foundation for the Board’s conclusion
that Mr. Mukasi had been complicit concerning the undisputed history of
crimes against humanity carried out by the Tutsi-dominated Burundian armed
forces during the time of his political influence within Tutsi-controlled
UPRONA.
[16]
Mr. Mukasi’s
complaints of procedural unfairness were not advanced before me in oral
argument. Those arguments have no legal merit and I reject them without
reservation.
[17]
This
application for judicial review is dismissed.
[18]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
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