In the matter of an arbitration
under the Rules of Arbitration of
the International Centre for
Settlement of Investment Disputes
Case No. ARB/18/21
Video conference
via Zoom
Monday, 28th June 2021
Before:
RT HON LORD PHILLIPS KG PC
MR J TRUMAN BIDWELL JR
MS BARBARA DOHMANN QC
| BAY VIEW GROUP LLC and THE SPALENA COMPANY LLC |
Claimants |
| -v- | |
| GOVERNMENT OF RWANDA | Respondent |
Secretary to the Tribunal: ALEX B KAPLAN
Transcript produced by Anne-Marie Stallard
and Georgina Vaughn on behalf of Trevor McGowan
STEVEN COWLEY, Duane Morris LLP
BRYAN HARRISON, Duane Morris LLP
RODERICK MARSHALL, Bay View Group LLC
RICHARD HILL QC, 4 Stone Buildings
ALASTAIR TOMSON, 4 Stone Buildings
MICHELLE DUNCAN, Joseph Hage Aaronson LLP
DANIEL McCARTHY, Joseph Hage Aaronson LLP
DANIELLE DUFFIELD, Joseph Hage Aaronson LLP
LUCY NEEDLE, Joseph Hage Aaronson LLP
NARCISSE DUSHIMIMANA, Rwanda Mining Board
SPECIOZA KABIBI, MINIJUST, Government of Rwanda
LISA GROSH, United States Office of International Claims and
Investment Disputes
JOHN DALEY, United States Office of International Claims and
Investment Dispute
NICOLE THORNTON, United States Office of International
Claims and Investment Dispute
CATHERINE GIBSON, Office of the United States Trade
Representative
MICHAEL COFFEE, United States Department of Justice
DONNA CHAPIN, United States Department of Justice
SARAH ROSSI, French-English interpreter
ELIZA BURNHAM, French-English interpreter
ROBERT WOLFENSTEIN, French-English interpreter
JEAN CLAUDE MUGENZI, Kinyarwandan-English interpreter
ROSE-MARIE MUKARUTABANA, Kinyarwandan-English interpreter
JAMES WATKINS, FTI Consulting
DAVID BRODSKY, FTI Consulting
ANNA LOUTFI, assistant to the Tribunal
COLLEEN FERGUSON, ICSID paralegal
IZABELA CHABINSKA, ICSID intern
PAGE
Discussion re procedural matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-1
MR ANTHONY EHLERS (continued) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-9
Cross-examination by MR COWLEY (continued) ....9
Re-direct examination by MR HILL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-27
MR JOHN BOSCO NSENGIYUMA (called) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-29
Direct examination by MR HILL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-29
Cross-examination by MR COWLEY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-31
Re-direct examination by MR HILL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-78
MR EVODE IMENA (called) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-80
Direct examination by MR HILL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-81
Cross-examination by MR COWLEY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-82
Tribunal questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-158
[Page 1]
12:06 Monday, 28th June 2021
(Transcript times are British Summer Time)
(12.06 pm)
MR KAPLAN: Mr President, we are ready to begin Day 6.
(Pause)
THE PRESIDENT: Good morning, Mr Cowley and Mr Hill.
(Pause)
The Tribunal has been debating the Claimants'
request to introduce an additional letter and the
Respondent's response to this, seeking in their turn to
introduce a further letter should the Claimants' request
be granted. We would propose, subject to hearing any
objection from counsel, that both of these letters
should be placed on the record, without prejudice to the
question of whether they are relevant.
I see Mr Hill nodding.
MR HILL: Yes, we're content with that. We're content.
THE PRESIDENT: Yes.
MR COWLEY: Your Honour, may I ask for a slight modification
of that? Can we ask that they put on the record subject
to a discussion, if there's time, in this hearing as to
the differences we perceive as to the grounds on which
these two requests are made, such that one or both may
be subject to being stricken; in other words, not
a final decision to admit, and revisit the issue if
[Page 2]
12:08 there's a difference, but not take up that time right
now?
THE PRESIDENT: I'm not minded to do that. If they're
placed on the record without prejudice to the question
of whether they are relevant, if they're not relevant
they will carry no weight whatsoever and it will be as
if they were not on the record. But we can defer that
discussion to later.
But, Mr Cowley, there's one matter I would like
a little assistance with. As I understand what you told
me when Mr Bidega had ceased giving his evidence, his
statement was prepared with assistance from
Mr Rwamasirabo. Is that right?
MR COWLEY: Mr Rwamasirabo assisted us in setting up
a discussion with him. I believe it was -- as
I understand it, because I wasn't on the initial
discussions with regard to the drafting of a witness
statement -- that they were in his office; if they were
not in his office, that they were set up by
Mr Rwamasirabo, wherever they occurred.
He was present to help explain what we were saying
and explain to us what Mr Bidega was saying. But then
we took to try to write it up, submit it to him so he
could understand it, and we were told by Mr Rwamasirabo
that he read it to him, told him what it said, but then
[Page 3]
12:10 turned it over to him and his son, who speaks English,
and his son and he went through it and whatever edits
they had or changes they had before coming back to us
were made.
So we were not in the active discussion in which he
signed it; it was he and his son, at least, sitting down
and going over it.
THE PRESIDENT: Well, what I particularly wanted to ask you
about was the position of Mr Rwamasirabo, because we
have had put on the record a declaration from him, and
he declares, "I am independent of the parties, their
counsel and the Tribunal". The Tribunal would just like
to know precisely what role he has been playing in these
proceedings, and the basis on which he is retained.
MR COWLEY: We have not retained him, and I don't have any
more information about it than that. Mr Rwamasirabo,
for the purposes of Mr Bidega's witness statement and
then later the conversation which I was involved in, the
preparation for this hearing, going over the details of
how it would happen, I know set up the discussion, you
know, contacted Mr Bidega to bring him into the
discussion with us. I thought it was in his office, so
he was playing a facilitator to make sure the
conversation could happen, and was there to answer any
questions about the interpretation. We had to make sure
[Page 4]
12:11 he understood what we were saying, and Mr Rwamasirabo
was there.
But it wasn't anything more than -- you know, in
that instance, it wasn't anything more than, for lack of
a better term, an informal interpreter, making sure he
understood what we were telling him, timing, what we
were doing, making sure he had copies of his witness
statement. And we went through Mr Rwamasirabo's
communication, I believe it was in his office, a Zoom
meeting. So that's the role that I know he played with
this: a facilitator.
THE PRESIDENT: Well, thank you. We'll leave that there for
the moment.
MR HILL: Mr President, could I just pick up on one part of
the answer from Mr Cowley, where he said that, as
I understood, his firm haven't retained Mr Rwamasirabo.
THE PRESIDENT: Yes.
MR HILL: We are still rather perplexed about whether he is
or is not being presented as essentially an expert
witness in these proceedings. It seems to be becoming
even more confusing as a result of that answer.
I wonder if Mr Cowley could be clear whether he is
purporting to be an expert in these proceedings or not.
MR COWLEY: Shall I respond, your Honour?
THE PRESIDENT: Yes, please.
[Page 5]
12:13 MR COWLEY: The discussions happened long before Mr Hill
became involved, and they haven't changed because we've
never discussed any open issues. But the issue was
raised initially by a challenge to us whether we could
submit the second witness statement of Mr Rwamasirabo,
and a position was taken that he would need to be
an expert; it wasn't accepted that we could submit the
witness statement.
So we began a discussion that -- we disagreed. We
explained our position. We did not believe -- we hadn't
retained him as an expert. He was not opining as to the
law; he was defending his initial statement as to what
he did, what he analysed, and his work with the
Claimants that did not go forward. He wasn't retained
to bring a case in Rwanda, so he wasn't hired in that
capacity. But he did review the file, and he's someone
who has the practical experience of representing other
concession holders.
So that's how NRD came to initially contact him.
They did not go forward with him. And he provided
a witness statement as to what he had in his file with
regard to NRD's application and his own experience as to
how the concession process works. He's talking about
his practical experience.
So we said he was a fact witness. And if challenged
[Page 6]
12:14 in terms of his statements as to what he does and how he
works with concession holders and what they do, what
they expect, on an idea that he has misunderstood the
law or doesn't appreciate the law, he's perfectly free
to explain his understanding of the law, and he doesn't
need to be an expert. And Respondent's counsel said:
no, they disagree.
So we said, "Well, then we're prepared to engage him
as an expert", and we gave them a statement that he was
prepared to go forward in that capacity and we asked
them, "Let's have a discussion. We think he can do what
he's done just as a fact witness. If you disagree"
we gave them the materials that they said were lacking
for an expert. We said, "We can discuss you having more
time, us going back and redoing, engaging him fully as
an expert, to analyse the law more broadly than the
narrow issues he discussed", and they never -- we never
picked up the discussion, ever. So it was just left as
an open issue, and we were waiting to see if they were
going to go forward with a challenge to his witness
statements.
As it came to be, when we had the initial hearings
in this case, there was no further -- excuse me, the
scheduling hearings before this proceeding -- that was
one of the open issues, because it was never discussed
[Page 7]
12:15 again. And we heard at that time that the Respondent
did not have any concern about putting him at the end,
leaving him in the position to possibly testify as to
opinion, but I guess they were still reserving the
argument as to what capacity he would be in.
Then we heard from Mr Hill, in answer to your
question whether there's anything that hinges on the
designation of him being an expert, the answer that we
suspected was true all along, which is: nothing. We
weren't proposing anything more than the witness
statements we submitted. They weren't actually
proposing to go forward with trying to strike them.
So nothing hinges on it. He's simply testifying,
and we don't intend him to do anything more than
testify, like any fact witness. When it comes to
cross-examination, he will be cross-examined on his
witness statement. That's all we intend, and that's all
we ever intended. But we never had that discussion; not
because we've been unclear about it, but because it
simply has never been picked up again. We invited the
discussion and we got no response.
We're happy just to leave it that he's got witness
statements on file and will testify like other fact
witnesses in examination of them, and we're not asking
for anything more. We did not have him sit through the
[Page 8]
12:17 hearings and listen, as experts are allowed; we're not
proposing to have him make a presentation on his own.
We didn't ask for any of those things.
MR HILL: Well, I'm grateful for the clarification, but
I would just put down my marker in light of that.
Mr Cowley has confirmed he is put forward as
a factual witness. We will be saying he doesn't really
have any relevant, admissible factual evidence he can
give. And he's not being tendered as an expert, and
that would also mean he doesn't have any evidence on
which he can really assist this Tribunal. I just put
down that marker.
THE PRESIDENT: Yes, you've put down the marker.
So far as the Tribunal is concerned, we agreed that
his evidence could be called because there was no issue
as to that. When a witness gives evidence, there's
always the opportunity for counsel to challenge the
admissibility or the relevance of the evidence given.
When we come to that evidence, then there may be
challenges to it on the basis that it is irrelevant.
But having looked at the evidence, it did seem to
the Tribunal that some of it was evidence of law. So if
one is trying to categorise his statement, it seems to
the Tribunal that it is, at least in part, expert
evidence of Rwandan law, and the Tribunal wouldn't wish
[Page 9]
12:18 to shut that out on the technical ground that he's being
called as a witness of fact and not as a witness of law.
So let us proceed.
MR COWLEY: May I ask Mr Kaplan: is Mr Ehlers available now?
MR KAPLAN: Yes, Mr Ehlers is in the waiting room, and it
sounds like we're ready for him and to continue.
MR COWLEY: May I have just two minutes? Because when we
were informed he wasn't available, I brought up all the
exhibits on my laptop for the other witness. So let me
just bring the right ones up.
THE PRESIDENT: Alright. Put your house in order. (Pause)
(12.20 pm)
MR ANTHONY EHLERS (continued)
MR COWLEY: Thank you for the opportunity to get the right
exhibits up on my computer. I'm ready to go forward.
MR EHLERS: Good afternoon.
MR COWLEY: Good afternoon, Mr Ehlers.
(12.20 pm)
Cross-examination by MR COWLEY (continued)
Q. In 2011, shortly after being terminated by NRD's new
owners, you immediately began working on an application
to obtain one of their concessions out from under them;
correct?
A. That's correct.
Q. And the entity that you worked through, or under the
[Page 10]
12:21 name of, was Mountain Valley Mining; is that correct?
A. That's correct. It's an Australian company.
Q. And the concession that you went after to try to get
away from NRD is the Nemba concession; is that correct?
A. That's correct.
Q. If I could ask FTI to bring up Exhibit C-181.
As a result of the efforts you made with Mountain
Valley Mining to pursue the Nemba -- excuse me, let me
restate the question I started.
As part of the efforts you made with Mountain Valley
Mining to go after NRD's Nemba concession, you
submitted, on June 13th 2011, an application for that
concession; correct?
A. Correct.
Q. Now, at this time the Ministry of Mines had not publicly
announced that they were accepting applications from
others for the award of the Nemba concession; correct?
A. I'd heard very strong rumours, and I wanted to put us on
the list.
Q. In fact, you were creating the rumours; correct?
A. I beg your pardon?
Q. You were creating the rumours; correct?
A. Sorry, you're breaking up. I was doing what?
Q. You were creating the rumours that NRD was in trouble
with the Nemba concession; correct?
[Page 11]
12:23 A. Not at all.
Q. You will agree that you did not respond to a public
announcement that the ministry was accepting
applications for a Nemba concession; correct?
A. No, I didn't respond to a public announcement.
Q. And the application that's attached to this cover
letter, you prepared; correct?
A. Yes, I submitted it.
Q. You prepared the application for the allocation of Nemba
vast mining and exploration licence to MVM. You
prepared that document; correct?
A. Yes.
Q. And to do so, you relied on the information, data and
documents on your laptop that you have been holding
since leaving NRD; correct?
A. Yes, correct.
Q. You admit that you knew it was NRD's information that
you were using; correct?
A. Yes.
Q. In your supplemental witness statement -- if I could ask
that FTI bring that up as well, and focus specifically
on paragraph 33.
In this paragraph you explain, if I could draw your
attention to the last sentence of the paragraph, that
you "accept that it may have been wrong" to use that
[Page 12]
12:25 information, to use NRD's information, for the purpose
of submitting an application for a concession owned by
NRD; you acknowledge that, right?
A. Yes, I do.
Q. But you justify it by saying you thought you were owed
money, so it was appropriate; correct? (Pause)
Mr Ehlers?
A. Did you hear me?
Q. I didn't hear any answer, so I'll ask the question
again?
A. I heard you.
Q. Could I ask the question again, so it's clear what
you're answering?
A. Yes, sure, sure, sure.
Q. You justify using the NRD data and information on your
laptop in order to pursue an application to get one of
the concessions out from under NRD because you say you
were owed money by NRD and you felt aggrieved by how
Mr Marshall treated you; correct?
A. Yes, that's correct.
Q. You admit that as of this time, as of June 2011, you
hadn't filed a claim for unpaid wages in any court
proceeding in Rwanda; correct?
A. The -- my wages, or my salary, I never used -- I never
had ever submitted an invoice; it was paid automatically
[Page 13]
12:27 into my bank account. But by -- I'm not quite sure
exactly when I started action against NRD, but it must
be round -- it must be -- I'm sure I'd started the
action long before that.
Q. You'll agree that you don't present any evidence of
an action against NRD in your witness statements;
correct?
A. Yes. I don't have evidence of that.
Q. You'll agree, won't you, that the value of whatever
wages weren't paid for a month or so, that you say the
money didn't go into your bank account, pales in
comparison to the value of owning the licence rights to
the Nemba concession; don't you?
A. Yes, that's correct.
Q. And because your focus immediately upon being
terminated -- and if I could ask FTI to close the
witness statement document and if you bring up C-181,
just so that the witness can look at it if he needs to
refer to it. I don't have a specific question.
You'll agree that because your attention was turned,
almost immediately upon termination, to preparing that
document, C-181, the "Application for the Allocation of
Nemba Vast Mining and Exploration Licence", that in
order to give that application any meaning, in order to
get in line or put your name in, as you suggested
[Page 14]
12:29 earlier, you needed to create vulnerability for NRD's
continued holding of the Nemba concession; right?
A. Sorry, I'm not following you. What do you mean by
"vulnerability"?
Q. You needed to create the rumours and questions about
whether NRD was going to be able to hold the Nemba
concession because you wanted to get it; correct?
A. Yes, I wanted it, but I didn't have any need to create
rumours.
Q. Well, you'll agree, sir, that while you were managing --
let's take a step back.
The status in June 2011 was that NRD had pending
with the Ministry of Mines an application for licences
going forward in the Nemba concession and the four
others that NRD was originally awarded; correct?
A. Correct.
Q. That application was submitted in November 2010;
correct?
A. Correct.
Q. At the time, in November 2010, you were the managing
director of NRD; correct?
That's correct.
Q. And you had no hint that you were going to be fired in
a few months; correct?
A. Yes, correct.
[Page 15]
12:31 Q. Mr Marshall wasn't even owner or engaged at that time in
the sale transaction; correct?
A. That's correct.
Q. You oversaw the preparation of the November 2010
application; correct?
A. That's correct.
Q. When you did that, you didn't say to the Ministry of
Mines, "We concede that we're not entitled to licences
going forward for these concessions", did you?
A. Just repeat that, please. You broke up a bit.
Q. Sure. Sorry.
When you were managing director of NRD, and
overseeing the submission of the November 2010
application, you didn't communicate to the Ministry of
Mines on behalf of NRD, "We concede that we're not
entitled to licences going forward", did you?
A. No, I did not.
Q. Your position was, as managing director of NRD, that the
application you were submitting was sufficient to be
awarded the licences going forward for those five
concessions; correct?
A. No, that's not correct. The -- very soon after
I submitted that application, I had a meeting with
Dr Michael from OGMR, and he told me that NRD had not
done enough exploration and there was still a lot of
[Page 16]
12:32 work required.
Q. And if that happened --
A. Rather than --
Q. I'm sorry. I didn't know you were still talking, sorry.
A. Yes, there was a lot more work required and the
environmental impact assessment had not been completed,
if I remember correctly.
Q. Well --
A. So Dr Michael specifically asked me to finish the EIA.
But the company had not done sufficient exploration,
according to Dr Michael.
Q. If that had happened -- well, strike the question, I'll
start again.
At the time of this conversation you were still
managing director of NRD, you said; correct?
A. That's correct.
Q. You reported to the owner of the holding company, which
was a Starck subsidiary; correct?
A. Correct.
Q. So the people who were paying you were at Starck, and
they expected you to carry out and protect their
interests and their investment in Rwanda through NRD;
correct? (Pause)
I believe we may have lost -- I'm sorry, sir, but if
you answered, it was all lost, in terms of the audio
[Page 17]
12:34 transcript. So I'm going to ask the question again --
A. Yes, it's correct. I was -- as MD, I was still looking
after Starck's interests.
Q. So you knew --
A. After my meeting with Dr Michael -- after my meeting
with Dr Michael, I immediately spoke to Starck and
explained to them that not sufficient exploration had
been done.
Q. You've not produced any document from your laptop
supporting the idea that there were communications
between you and Starck after November 10th 2010 in which
you reported upon the so-called "discussion" with
Dr Mike; correct?
A. Yes, that laptop has been stolen a long time ago: it was
stolen out of my car. So I don't have that information.
But that type of communication would have been
telephonic and in writing.
Q. And you never produced a copy of the writing, from
whatever source, in which you told Starck about
a meeting you had with Dr Mike; correct?
A. Yes, because I don't -- I don't have that information.
I -- can I carry on?
Q. Well, I have to ask another question.
A. I think --
Q. I'm sorry?
[Page 18]
12:36 A. Sure.
Q. I was going to ask another question and then we can go
forward.
A. Yes, sure. I'm listening.
Q. You submitted the application on behalf of Mountain
Valley Mining that's been marked C-181 based solely on
the information on your laptop that you had to use for
the NRD application in November 2010; correct?
A. Correct.
Q. So your testimony is that after submitting the
application for NRD, you were told that the data
provided did not show sufficient exploration; and yet
you submitted the same data again in June 2011,
expecting to receive the concession on behalf of another
company. Correct?
A. Yes, but I was -- we were prepared to do the exploration
which was required.
Q. But you hadn't done any exploration between getting
fired by Mr Marshall and submitting the June 2011
application on behalf of Mountain Valley Mining;
correct?
A. That's correct. There was no way that I could go and
explore or do drilling on that concession.
Q. You couldn't go and do an environmental impact
assessment on the Nemba concession either; correct?
[Page 19]
12:38 A. No. I can't remember exactly when we started the
environmental work. I can't remember. But yes --
Q. But NRD didn't give you access --
A. -- it was ... NRD did not give me access?
Q. Sir, I just want to apologise for speaking over you and
try to explain it, in case it helps us to limit it.
A. No, I'm listening. It's -- we are breaking up a bit.
Q. That's the problem. So if I do start talking over you,
I apologise. I will try to stop and have you pick back
up what you were talking about. Just let me know.
A. Sure.
Q. You'll agree that you had no access to the Nemba
concession, after being terminated and before submitting
the application to Mountain Valley Mining, to improve on
any of the data or information that was included in the
November 2010 application for NRD; correct?
A. That's correct.
Q. But you thought that same data and information in
June 2011 was good enough to get the Nemba concession
awarded to you on behalf of Mountain Valley Mining?
A. I think ... yes.
Q. Isn't it true that your discussion --
A. I hadn't --
Q. I apologise.
A. I'm listening.
[Page 20]
12:39 Q. I think I cut off what you had to say, so I'm sorry,
sir. But I don't think, if you did say something, it's
recorded.
A. No, that's alright. If you carry on, I can add.
Q. So isn't it true that your discussion with Dr Mike was
not about things that needed to be improved on for NRD,
but how you and he could work together so that the
concession could be taken from NRD and given to
a company you controlled?
A. No, I never had any of that discussion of that nature
with Dr Michael. I don't know who has met Dr Michael,
but Dr Michael is a very, very honourable man, and
Rwanda isn't a country where the head of geology would
be giving away tenders or be giving away concessions
based on some underhand dealings. Dr Michael -- that is
not Dr Michael's character. And in Rwanda, if you had
to do that, you would end up in jail very, very quick.
It is a country with zero corruption, or perhaps one of
the less corrupt countries in Africa.
No, I never had any discussion of that nature with
Dr Michael.
Q. You've seen the information and exhibits that were put
forward by Respondent, or at least you've seen some of
the exhibits and information that had been put forward
by Respondent that relate to you, and you used some of
[Page 21]
12:41 them or referred to some of them in doing your witness
statements in this case; correct?
A. Yes.
Q. And you've never seen from the Respondent any document
from Dr Mike, internally or externally, to NRD or
someone else, memorialising a conversation he had with
you about the things that needed to be improved upon
after the November 2010 submission of the application;
correct?
A. We had a verbal discussion on that, but I didn't see any
more documentation.
Q. You'll agree with me that, based on your work with
Respondent to prepare your witness statements, it's fair
to expect, if Rwanda actually had a document
memorialising such a conversation from Dr Mike's side,
it would be part of your witness statement, wouldn't it?
A. Could you repeat that, please?
Q. You'll agree that based on working with the Respondent
to prepare your witness statements, you would have
expected, if there was a document confirming the
discussion you say you had with Dr Mike after
November 10th, Respondent would have put it as
an exhibit to your witness statement; correct?
A. Well, I can't -- I can't say what they would have done.
But I didn't know any document like that. I still can't
[Page 22]
12:43 remember a document like that.
Q. If I could ask, if you scroll -- I'm sorry, it's the
document on the left. And because he's on an iPad, if
we could make it just one page, so that it's big enough
for him to see.
So this is the transmittal letter, sir. The "Cc",
is that intended to read "[Head of]" -- well, you tell
me: what does the "Cc" refer to? Who did you deliver
the copy to?
A. That "HoD" would have been the HoD in the Department of
Geology and Mines.
Q. And what did you understand that to refer to when you
sent this?
A. I would have understood it to refer to Dr Michael.
Q. You in fact worked with Dr Michael in preparing this
application before it was sent, didn't you?
A. No, I did not. No, I never worked with Dr Michael.
Q. If I could ask that C-122 be brought up.
You were informed that as part of their submission,
Claimants provided this document, a cooperation
agreement between BVG, when it was independent of NRD,
and NRD, from the 2010 time period; correct?
A. Yes.
Q. You worked with Respondent and you prepared a witness
statement that said you're not aware of any such
[Page 23]
12:45 document, not your signature, not aware that any
cooperation agreement existed at all; correct?
A. That's correct. It's a long time ago, and I couldn't
remember that we had an agreement in place.
Q. In fact, you do --
A. What I do -- what I did say in my statement -- what
I did say in my statement is that Mr Marshall and I had
discussed it in November, and that's it. We had
discussed it. I couldn't remember signing a document.
Q. If I could ask that Mr Ehlers's supplemental witness
statement be brought up and paragraph 23.1 be focused
on.
In fact, the first thing you said when informed of
the document we just looked at is in paragraph 23.1;
correct?
A. Correct.
Q. You said you never saw a written cooperation agreement
at all before; correct?
A. That's correct.
Q. You had discussions, but you didn't mean to say you had
discussions about a document in your answer just
a moment ago, right? You meant to say in this witness
statement you didn't believe there was such a document
ever prepared; isn't that correct?
A. That is correct. I couldn't remember a document being
[Page 24]
12:47 prepared.
Q. And that's because you want very much to call
Mr Marshall a liar, don't you?
A. No, I have no reason to call him a liar. If he's not
telling the truth, it will come out in his witness
statement.
Q. Then if I could ask that C-210 be brought up. (Pause)
You were made aware, sir, that after you submitted
your supplemental witness statement, the Claimants, in
response, provided a copy of this email and its
attachment.
If you could scroll down so the witness can see.
(Pause) Can I ask that the email be scrolled down, so
that the attachment can be brought up.
So you're aware that the next thing that happened
relating to a cooperation agreement was that Claimants
responded with a version of such an agreement that you
signed and sent by email to Mr Marshall, asking him to
countersign and send back; correct?
A. Yes. I didn't remember that. But after I've seen this,
that's correct.
Q. And as a result of seeing this, you went further to ask
to see the metadata, because you questioned the truth of
the email and whether that was faked; isn't that right?
A. Could you repeat, please?
[Page 25]
12:50 Q. Yes. As a result of learning that this document was
presented, you challenged whether this document, the
email and its attachment, was legitimate, and you asked
to review the metadata, the computer information about
this document, didn't you?
A. Yes, because I had no recollection of signing this
document.
Q. And you were --
A. I had no recollection that we'd set out these points.
Q. You were looking for another way to call Mr Marshall
a liar: you were trying to challenge the veracity of
what he represented; correct?
A. No, I certainly wasn't doing that. I just didn't recall
signing this, I didn't recall this document.
Q. And you --
A. I think that's reasonable, to say -- if you don't recall
it, you'd like to say: well, show me.
Q. And Claimants did show you the metadata; correct?
A. No, I didn't see any metadata. I saw this.
Q. You know the Claimants provided metadata to the
Respondent's counsel, don't you?
A. Possibly they could have. I didn't see it.
Q. You have not reviewed the metadata and have any
challenge to the information in such metadata as to when
this document was sent and by whom; correct?
[Page 26]
12:51 A. Yes, I have not had access to that.
Q. You'll agree, sir, that --
A. I--
Q. I'm sorry, I didn't mean to speak over you. Please.
A. No, no, sorry. I'm listening.
Q. Okay. You'll agree, won't you, that in November 2010
you had a better memory of what discussions you were
having with the then third party, BVG, and Mr Marshall
at that time than you do today; correct?
A. Yes.
Q. You were paying attention to this --
A. Some things stick out in your memory, some don't.
Q. I understand. I'm moving on, suggesting -- I want you
to focus back on November 2010.
This was something that you were focusing on getting
done with Mr Marshall on behalf of Starck and NRD. You
were involved; correct?
A. That's correct.
Q. Okay. So at that time you were aware better than you
are today of what was agreed to and what was supposed to
be done; correct?
A. Yes --
Q. And you'll agree, sir, that --
MR HILL: If I just could ask Mr Cowley just to give him
a chance to give his answer, because there you are
[Page 27]
12:53 cutting him off a little.
MR COWLEY: I apologise. I'm just trying to speed up. And
I agree, Mr Ehlers, I'm not trying to cut you off. So
please, if I did prevent you from saying anything,
please finish.
A. No, and I understand: we've got time lag. I understand
perfectly.
Q. You'll agree, sir, given your role as managing director
and whose interests you were looking out for at the
time, if BVG did not provide the $100,000, you would
have called them out on it and demanded that they
perform, wouldn't you?
A. Yes, I would have.
Q. And you've provided no such documentation in connection
with your witness statements; correct?
A. Correct.
MR COWLEY: No further questions.
(12.54 pm)
Re-direct examination by MR HILL
Q. Mr Ehlers, just on your last point, do you recall under
the agreement that the $100,000 was there as a loan to
provide to NRD for purchasing equipment to be used for
the work that NRD was to do on the Bisesero concession?
A. That's correct.
Q. Did NRD do work or not do work on the Bisesero
[Page 28]
12:54 concession under this cooperation agreement?
A. As far as I remember, we -- as far as I remember, NRD
never did any work on Bisesero. If you look at the
dates of these things, the company -- the company was
bought by Mr Marshall at the end of December, a month
later, almost. So there was never any work done at
Bisesero that I remember.
Q. So in those circumstances, do you think it would have
been necessary or not necessary to bother to chase for
the $100,000 for equipment for that work?
A. Yes, the -- what I envisaged for that $100,000 was more
like site establishment. We had the equipment in NRD
which we were not using fully, but we had to hire
low-beds and trailers for transport, and we would have
to establish ourselves on Bisesero. It was more like
a site establishment I envisaged at Bisesero.
MR HILL: Thank you, Mr Ehlers.
THE PRESIDENT: Thank you very much, Mr Ehlers, for coming
to assist us. You are now free to go.
MR EHLERS: Thank you very much.
(The witness withdrew)
MR HILL: We now have Mr Nsengiyuma.
THE PRESIDENT: Yes. I understand he will be giving his
evidence in French.
MR WATKINS: Just a reminder for everyone to choose the
[Page 29]
12:56 proper interpretation channel: obviously English if
you're a native English speaker.
Would you like me to bring him in, Mr President?
THE PRESIDENT: Yes, please. (Pause)
(12.59 pm)
MR JOHN BOSCO NSENGIYUMA (called)
(Evidence interpreted)
THE PRESIDENT: Good morning, and thank you for coming to
give evidence today.
MR NSENGIYUMA: Bonjour.
THE PRESIDENT: You will see on the screen a déclaration de
témoin: would you please read it?
MR NSENGIYUMA: (In English) Read it.
THE PRESIDENT: On the screen in front of you, you see
a déclaration: could you please read it?
MR NSENGIYUMA: Okay.
THE PRESIDENT: Aloud.
MR NSENGIYUMA: (Interpreted) Witness statement: I solemnly
swear on my honour and conscience to speak the truth,
the whole truth, and nothing but the truth.
THE PRESIDENT: Thank you.
MR NSENGIYUMA: Thank you.
(1.00 pm)
Direct examination by MR HILL
Q. Mr Nsengiyuma, could you be shown paragraph 8 of your
[Page 30]
13:00 supplemental witness statement, your second witness
statement.
I understand you have a correction or amendment you
would like to make to that paragraph?
A. Indeed. I would like to make a change on the second
line.
I passed on my communications to the head of Spedag
for her to pass them on to Mrs Zuzana Mruskovicova.
Ever since the first contact with Zuzana Mruskovicova,
they had refused to speak to me directly, and every time
I had to go through a third party who would then pass on
my message, or Mrs Mruskovicova would go through a third
party who then would pass on her message.
So there was no direct contact; there was always
a third party in between. That was our work
environment.
Q. You explain in your witness statement that you were
executing on certain judgments. One of the questions
that has come up in this case is whether or not you
provided copies of those judgments to NRD or to
Mr Marshall or to Ms Mruskovicova. Can you just give
your evidence on that question?
A. I passed on my documents through the reception of the
NRD office. They had a secretary there whose name was
Barbara, and she would take in all the mail.
[Page 31]
13:03 Now, under Rwandan law, the bailiff is expected to
leave the document with the secretariat of the company;
there's no direct contact with the executives of the
company.
MR HILL: Thank you, Mr Nsengiyuma. Mr Cowley, who
represents the Claimants, will now ask you some
questions.
MR NSENGIYUMA: Thank you.
(1.04 pm)
Cross-examination by MR COWLEY
Q. Mr Nsengiyuma, I'm sorry if I mispronounce your name
during the course of this questioning. It won't be
intentional, but I seem to unintentionally do that
a lot, and I apologise in advance.
A. [No problem].
Q. A professional bailiff in Rwanda is required to maintain
an accounting of the value of recoveries received after
seizure of property against debt being enforced;
correct?
A. That's correct.
Q. A professional bailiff in Rwanda is required to maintain
a log identifying all property seized or locked up for
collection against a debt; correct?
A. It is true, it is correct.
Q. A professional bailiff in Rwanda is required to maintain
[Page 32]
13:05 the security of property seized or locked up before it
could be safely disposed of and credited against the
debt; correct?
A. That's correct.
Q. A professional bailiff in Rwanda is required to obtain
independent appraisals of value for the property seized
before selling it; correct?
A. That's correct too.
Q. A professional bailiff in Rwanda is required to report
back to the court as to the results of any court-ordered
or permitted auction of seized assets to inform the
court what was obtained or other results of the auction;
correct?
A. Well, the bailiff does not report to the court. The law
says that you have to report to the person who gave you
your order, you have to provide the copy of the
judgment, of the ruling; and should the person or the
company disagree with what was done, well, that company
or person can turn to court or to the police. And that
was the case with Mr Marshall and Zuzana. Whenever
there was an auction, there was -- the police were
involved, and I had to go to the police and explain
myself.
Q. In the situations where a professional bailiff in Rwanda
seeks approval of a court or permission from a court to
[Page 33]
13:07 hold a specific auction of specific property, that
bailiff is then required to report back to that court as
to the results of that auction; correct?
A. No, no, the Rwandan law, when you have to seize
property, the property -- the mechanism is as follows:
the client comes with a copy of the ruling with
a command from the court. Now, there's a contract
between the person who provided a copy of the judgment
and the bailiff.
Q. Mr Nsengiyuma, I just would like you to focus on one
incident and one aspect only in my question.
I appreciate that there's more to the work of a bailiff
than collecting on a debt than I'm specifically asking
about now. But I asked you to focus only on one
instance, one circumstance that might come up, and that
is a situation where, while working to collect debt,
a bailiff in Rwanda, for some reason, asks for and
obtains permission of the court to hold a specific
auction.
In that instance, the bailiff is required to report
back to that court that gave the permission as to the
results of that auction; correct?
A. Well, the bailiff doesn't request authorisation from the
court. He simply publishes dispatches -- that is,
announcements -- on the media, in papers or on the
[Page 34]
13:09 radio, and on the indicated dates he acts upon the
order. That's the way it works.
Q. A professional bailiff in Rwanda is required to provide
a written report to the judgment debtor as to the status
of all credits and all receipts obtained from the
seizure and sale of assets taken from that debtor;
correct?
A. Well, yes, to the debtor and the creditor.
Q. Now, you provided an initial witness statement in this
case. If I could ask that that be brought up and refer
to it at points.
Through the course of this witness statement you
discuss events relating to your seizure and auction of
minerals tagged in NRD's name at the entity called
Mineral Supply Africa in order to collect on a judgment
in favour of your then client, Pascal Rwakirenga, and
I'm sure I mispronounced his name. Is that correct?
A. Yes, I recollect the case.
Q. In collecting on that debt -- and if you'll permit me,
I would like to refer to that client of yours as
"Mr Pascal": I'll be less likely to mispronounce that.
In collecting on Mr Pascal's debt, you also seized
other assets of NRD beyond those minerals you referred
to in this witness statement; correct?
A. Well, there were only two auctions conducted by myself.
[Page 35]
13:11 Now, other property was seized by the other bailiff, but
I myself only conducted two auctions. So there were the
minerals to MSA, and Mr Marshall's car. And other
bailiffs were involved in selling other things, but
I only conducted these two auctions.
Q. Mr Marshall's car was seized and auctioned in what year?
A. I'm afraid I don't recollect the year, but it must be in
the documents.
Q. You seized a number of other assets from NRD, including
trucks, heavy equipment, machine equipment; correct?
A. What I seized at a certain time, Mr Marshall lodged
a complaint with the Ministry of Justice claiming that
I was using forged or falsified court documents. And
the Minister of Justice at the time ordered me, in fact,
to put an end, to put a halt to what I was supposed to
do -- that is the execution against NRD -- and asked me
to leave that case. So I did so. And so when I left
the file, my bailiff colleagues took over the selfsame
case and they continued the work I was supposed to do.
Q. You're talking about the collection case from Mr Pascal;
correct?
A. Well, there were as many as 28 NRD employees who hadn't
been paid their wages. This was unlawful termination.
And so this entire group of NRD workers -- I think there
were 28 of them; the exact number is in the document --
[Page 36]
13:14 Pascal was just one of them. He was one of these
terminated employees.
Q. I would like to focus on that case and that collection
for that client.
You seized a number of assets in order to collect on
behalf of Mr Pascal -- I'm not asking about the others
yet -- correct?
A. Alright.
Q. And you say included among the assets you seized,
collected for Mr Pascal, was Mr Marshall's car; correct?
A. Well, first there were the minerals, which were located
at IPC. This was the first seizure. And indeed, it was
Pascal who was able to benefit from the proceeds of
that.
Q. My question was about the car. We talked about the
minerals, and I said: other than the minerals, you
seized other assets? You brought up Mr Marshall's car.
I'm trying to confirm with you that you brought up
Mr Marshall's car as another asset you seized in order
to collect on behalf of Mr Pascal; correct?
A. Well, not as Mr Pascal. It was Mr Pascal and other past
workers.
Q. Well, whose debt did you credit the sale price of the
car against?
A. Well, part of it was indeed for Pascal.
[Page 37]
13:16 Q. I appreciate. Let me walk through a little bit more --
A. But for the minerals, that went all to Pascal.
Q. Okay. I'm going to possibly return to that question
about the distinction, but let me take it in order of
your witness statement. It might be easier for you to
follow my questions if you have your own witness
statement to track along with.
Can I ask FTI to focus on paragraph 10.
In this paragraph of your initial witness statement
you discuss the first efforts to collect on behalf of
Mr Pascal; correct?
MR NSENGIYUMA: (Not interpreted).
THE INTERPRETER: Apparently he didn't receive the
translation. I'll start again.
MR NSENGIYUMA: [The translation in French.]
THE INTERPRETER: Apparently Mr Nsengiyuma didn't receive
the translation. Can we try again? Can you ask the
question again, please?
MR COWLEY: Oh, you asked me. I'm sorry. Of course.
Paragraph 10 of your witness statement, sir, is the
discussion of your first efforts taken on behalf of
Mr Pascal to collect his alleged debt against NRD?
A. That's correct, yes.
Q. And in this paragraph -- well, to be clear now, because
I did bring up the topic of distinguishing between the
[Page 38]
13:18 two. At this time, whatever number of the other
clients -- you characterised sometimes as 26, sometimes
as 28 in your documents -- that hadn't started yet at
all. At this time, the only debt you were collecting
against NRD was Mr Pascal; correct?
A. Well, you have to look at the year. Here we're looking
at 2013. 2013 was indeed the first order I executed.
But after 2013, other employees came forward.
Q. So we can agree that at the time referenced in
paragraph 10, the only client you were working [for] to
collect debt against NRD was Mr Pascal, and no one else
at that time; correct?
A. That's correct: it was Pascal.
Q. And you say that you served notice of the debt you were
going to collect on so that NRD could pay in order to
avoid your seizing assets; you say that in paragraph 10,
right?
MR NSENGIYUMA: [Hello? There is no translation.]
MR KAPLAN: The witness is not hearing the translation, the
interpretation.
MR COWLEY: I note, Mr President, that I've gone past 8.15,
and if memory serves, that was the time for the --
A. If I may answer? When you pass on copies of the
judgment to NRD, the company is required or it's
requested to pay, to come up and settle the debt. And
[Page 39]
13:20 if it doesn't do so voluntarily, well, then the property
is seized and auctioned off.
MR COWLEY: Mr President, is this a good time for the
Tribunal to take a break?
THE PRESIDENT: I don't think it is, because we only have
the interpreter for the first three hours of this day.
So I would propose we continue until this witness is
finished before we break. Having regard to your
estimate of the time you would need, I imagine that's
likely to be before 2 o'clock.
MR NSENGIYUMA: There's no problem on our side.
MR COWLEY: Now, your witness statement cites -- in support
of your statement that you provided notice of the amount
to be paid, you cite to R-051, a document with the
number R-051. Do you see that?
A. I thought we saw the document just now, just before this
one. It was a table, I believe that was it. Could we
see that again?
Q. I'll go to R-051 in one second. But before we leave
your witness statement, do you agree that you testified
you left the notice about the amount owed for this debt
that had to be paid immediately or in order to avoid
seizure of assets, that you provided it to the
administrative assistant you refer to in paragraph 10 as
"Shema"? Do you see that?
[Page 40]
13:22 If I could ask FTI to go back up to paragraph 10.
A. Can I see the document that I... yes. Usually when you
are in contact with the company, well, the secretary
receives the document noted. Now, it may happen that
the secretary will not be certain, will hesitate, and
will ask her boss to sign off, to sign the document.
But it is for the reception office, whoever is there
manning that office, to receive -- to acknowledge
receipt of the document.
Q. Rather than hypothetically, I'm asking specifically,
because paragraph 10 of your witness statement is
specific. Your testimony is that the notice that
Mr Pascal --
A. Shema was the secretary then.
Q. And you claim that the document identified as R-051 is
what you gave Shema; do you agree with that?
A. I know it was through Barbara.
Q. Can I ask FTI to bring up R-051.
That's the document you cite to, and say in your
witness statement at paragraph 10 you gave to Shema in
order to provide notice to NRD as to the amount it had
to pay to avoid seizure of assets; correct?
A. Yes.
Q. If I could ask FTI to --
A. Well, I did give the document -- the document was left
[Page 41]
13:24 at the reception. I mean, Barbara took the document,
and Barbara in turn placed the document with her boss,
whose name was Shema. But it was Barbara who took the
document and passed it on, but indeed it was Shema who
signed the document, who signed -- not the document, but
acknowledged receipt of the document.
Q. If I could ask FTI to scroll down, so that the witness
can see the full document.
Do you see the full document that you cite to are
these two pages?
A. That's correct.
Q. You'll agree, sir, that the document you've testified
that you provided to the company for notice of your
collection efforts of this claimant, Mr Pascal, did not
attach any judgment in favour of Mr Pascal, just these
two pages; correct?
A. Well, it says so. There's a reference to the judgment.
There's a -- all the judgments and the rulings are
referred to on that document.
Q. And you'll agree that you didn't give a copy of the
judgment; you gave these two pages. That's your
testimony; correct?
A. They were annexed, the documents. They only signed the
first page, the cover page.
Q. But you didn't provide your copy of the notice that
[Page 42]
13:26 includes any attachment --
A. Well, everything was annexed.
Q. Sir, you kept your own copy of what Shema signed;
correct?
A. I keep the originals and I produced photocopies.
Q. And your testimony --
A. Because --
Q. I'm sorry, I didn't mean to speak over you.
A. Go ahead.
Q. Your testimony, in paragraph 10 of your witness
statement, is: this is a copy of what you left with
Shema; correct? You said that.
A. Yes, but every time --
MR HILL: That's not a fair characterisation -- could I just
interrupt. That's not a fair characterisation of the
witness statement. If he's going to tell him what is in
his witness statement, Mr Cowley must do so accurately.
There's no inconsistency between what the witness is
saying now and his witness statement.
MR COWLEY: I strongly object to the coaching. I have shown
the witness his statement. He's perfectly capable of
answering this question. I believe it's fair.
Sorry, sir, we spoke over you. Do you have
an answer?
A. On what question, sorry?
[Page 43]
13:28 Q. The document you put forward in support of your
statement that you gave notice to the company, that
Shema received notice, only includes these two pages.
You did not provide a copy of a document that includes
any judgment attached to these two pages; correct?
A. Well, as soon as there's a command to pay, you give the
original. And in the annex we indicate the rulings that
are to be executed should the company, or the legal
representative, disagree with what is written on the
commandment to pay.
Q. And --
A. And the company can produce a letter of protest, but
that never happened.
Q. And the reason, sir, there's no annex to the document
designated R-051 is because there's no annex to the copy
of the original in your files; correct?
A. Well, the photocopies are always annexed. You say that,
"I am to execute the ruling [so-and-so]", you attach --
you have to attach a copy of the rulings. Should the
person who lost the case decline to execute, that person
can challenge the accuracy of the ruling. But that was
never challenged; that never happened.
Q. So you'll agree that there is no copy of the judgments
produced in support of your witness statement at
paragraph 10?
[Page 44]
13:30 Can we go back to the witness statement. I don't
want him to be misled.
A. I did say that -- well, in these documents you always
say that in the annex, the rulings are there. These
documents are annexed, just to prove that we're not
fabricating this.
Q. But they're not in the document you attached to your
witness statement? That's all I'm asking you, sir. You
can't agree with that?
Again, if I could ask FTI to bring up the witness
statement, so he doesn't have to answer this question
without seeing it. Thank you.
I can't tell if ...
A. No, automatically the rulings must have been annexed,
but you can be happy with producing just the two pages.
But when you serve a demand, you produce a letter with
the signature of the bailiff and an annex to that
letter: you include the photocopies of the rulings
themselves, the rulings that are to be executed.
Q. Sir, could I ask: when you prepared your original
witness statement, you understood that one of its
purposes was to establish for this Tribunal that you
complied with Rwandan law in everything you say you did
to collect judgments against NRD?
A. Well, yes, I executed according to the law. And
[Page 45]
13:33 Mr Marshall took me to court about ten -- at least ten
times, and he never won. He never won any of his
lawsuits.
Q. I'm going to ask you again my question, and I'm going to
ask you to focus on what I'm saying is the purpose. I'd
like to make sure we're in agreement.
You understood when you prepared your witness
statement that your purpose -- one of your purposes --
was to explain to the Tribunal that you complied with
Rwandan law in what you did to collect judgments against
NRD?
A. Well, it is not for me to establish what they are doing.
What happens is in Rwanda, bailiffs are independent.
The bailiff stands in his office: when he receives
a copy of a ruling, he then drafts a demand. And
I don't have to -- well, unless I'm being sued to say
that I didn't follow the procedure: well, then there's
a lawsuit.
But in this particular case, the person who won the
case went to the bailiff, the bailiff served a demand to
pay, that is passed on to the company, and that's what
I did here. It took these two pages, the two pages with
the annex, the copies of the rulings, referred to on
these two pages.
Q. Sir, your witness statement in paragraph 11, which then
[Page 46]
13:35 goes on to the next page for a few more paragraphs,
describes the seizure of minerals at Mineral Supply
Africa in the name of NRD to collect on Mr Pascal's
judgment; correct?
A. That's correct.
Q. Please scroll down so that he can see the page.
Mr Pascal, I'm going to ask you: if, in order to
answer this question, you need to look further, at
further paragraphs above or below in your witness
statement, please say so and it will happen.
My question to you, sir, is: do you agree your
witness statement doesn't provide any evidence
whatsoever of your providing a statement to either
Mr Pascal or NRD as to the amount received at the
auction and how much was credited against his debt?
A. You're referring to the auction?
Q. Yes, sir.
A. Well, the report was drawn up, and immediately after the
auction, Marshall -- Mr Marshall [summoned] me to the
police station, and it all happened in front of me at
the police station to say how the auction went.
Q. Sir, that's not discussed in your witness statement,
is it?
A. Well, I wasn't asked. But Marshall dragged me to the
police station about ten times, and every time we had to
[Page 47]
13:37 give explanations in front of the police officer.
Q. You talk about all the various times that you did
recall, when writing your witness statement, that there
were challenges, and what you had to do to overcome
those challenges. But you don't say anything in your
witness statement about being drawn to the police
station following the auction of minerals in NRD's name
at MSA, sold to pay Mr Pascal's debt, do you?
A. Well, on the documents it's always -- the reference is
made to that. All you have to do is go through the
documents: you'll find the references.
Q. Sir, I asked you about your witness statement. Please
just answer the question I asked.
You'll agree you did not recite such fact of being
drawn to the police station after this mineral auction
in your witness statement; correct?
A. Maybe if you go to the bottom of the page --
Q. FTI, please.
A. -- there are the documents I drafted. (Pause)
Okay, very good.
THE INTERPRETER: Sorry, I overlapped a bit.
MR COWLEY: Please answer the question.
A. I said that each time I made my report, I wrote down at
the bottom of the page to whom it was addressed. Each
time, it was written at the bottom of the page on my
[Page 48]
13:39 report; my report on the auction.
Q. Sir, I'm asking about your witness statement; do you
understand that?
A. Yes, I do understand.
Q. Can you agree with me that your witness statement
doesn't say [that] after the auction was held of the
minerals at MSA, you were called to the police station
and had to fill out such a report, does it?
A. As soon as the auction took place next to MSA, the next
day Marshall initiated legal proceedings against me and
I went to provide an explanation. In the report, it is
said that that was done.
Q. Can I ask a question: are you able to read your witness
statement written in English?
A. I speak French better than I speak English.
Q. But are you able to --
A. If you read me in French, I will understand.
Q. But the interpreter can tell you in French what I'm
saying in English, but I don't have a written
translation of this witness statement to French. I'm
just trying to establish: when I point to something in
this witness statement written in English, are you able
to read it?
A. No, not correctly. And I prefer in French: I understand
the nuances. But I really don't speak English well.
[Page 49]
13:41 MR COWLEY: I ask Respondent's counsel: is there a version
of this witness statement in French that was signed off
on before or after the English version was prepared?
MR HILL: I will need to take instructions. I can't answer
that now.
THE PRESIDENT: Mr Cowley --
MR COWLEY: Yes.
THE PRESIDENT: -- whether something is or is not in the
witness statement is a matter of record: it's something
that we can all see. It might shorten the
cross-examination if, instead of asking the witness to
agree it's not in the witness statement, to ask, "Why
did you not put this in your witness statement?"
MR COWLEY: I appreciate that. I had wanted to confirm
whether he could check --
THE PRESIDENT: Yes, well, it's taking a very, very long
time, without any result.
MR COWLEY: Thank you, your Honour.
Mr Nsengiyuma, can you explain why you did not
attach to your witness statement any report given to the
creditor, Mr Pascal, or NRD, the debtor, as to the
results of the sale of minerals and how much debt, if
any, remained owed to Mr Pascal?
A. This is in the final report.
Q. Can you explain why you didn't attach such a report to
[Page 50]
13:43 your witness statements?
A. I gave a document of about 100 pages: everything I did,
my work report. It's a very large document, about
100 pages long, and it's in there.
Q. So do you agree that you gave all of the documents in
your possession that related to your actions concerning
the collection on behalf of Mr Pascal to the Respondent
when preparing your witness statement?
A. I gave the whole document. And everything that I did
was in that document, but in my own language,
Kinyarwandan. (Pause)
Q. May I ask that paragraph 17 of the witness statement be
brought up.
Paragraph 17 of your witness statement, sir, reads:
"In early 2014 shortly after I had finished
Mr Rwakirenga's case, a group of 26 people, mostly
former NRD employees, asked me to help them enforce
judgments against NRD. The total amount owed to this
group by NRD was RwF 85,761,624."
Do you agree that it's your testimony that you did
not start working to collect any of the other employees'
debts until after you had finished Mr Rwakirenga's case?
A. No. I started Mr Rwakirenga -- that is Pascal
Rwakirenga -- and along the way his colleagues received
a copy of the judgments in their favour. So they came
[Page 51]
13:46 to see me and ask, "While you're executing the judgment
for Mr Rwakirenga, would you please handle our
judgments?" And this is how the 26 people basically
joined in to the group with Pascal Rwakirenga. So the
two actually were handled at the same time.
Q. Sir, when using the phrase "finishing a client's case",
by that, do you mean: collected their full debt and your
work is done?
A. No.
Q. When you use the phrase "finishing a client's case",
what does it mean?
A. We enforce a judgment. And when there are cases that
are similar -- there's the case of Pascal Rwakirenga,
who is asking for enforcement of the judgment against
NRD; at the same time, the other employees are asking
for enforcement of a judgment against NRD -- the two
cases get combined, get joined, and the enforcement done
against the same person or company. So the objects were
seized accordingly, and then they will be paid out
progressively; progressively, but at the same time.
So it's not that we completely complete one case and
start on the second. If they're close, if they're
similar, then we combine them, we join them.
Q. Sir, please appreciate that I'm not asking you to speak
about Mr Pascal's case and the other employees' case
[Page 52]
13:49 right now; I'm asking you how you use the term "complete
the client's case".
When you use that term, by "completing a client's
case", do you mean you have collected their judgment,
there's no more work to be done?
A. With an auction, we had -- the whole amount was not
covered; we had to continue with the seizures to reach
the full amount. And that was not done by me; it was
done by other bailiffs.
Q. And those other bailiffs would need to see a statement
of how much was recovered at the auction and credited
against the debt to know how much was left to be
collected; correct?
A. The documents are available, or were available.
A bailiff, when he finishes with his work, then the
bailiff who takes over, takes over where he left off.
When I enforced the judgment for Mr Rwakirenga,
I was the second bailiff to step in. There had been
a first bailiff who had sold something, and then I took
over. Then a third bailiff carried on after me. And
it's always on the basis of documents and on the basis
of a copy of the judgment. And there's information, and
NRD is informed as the process goes on.
Q. The group of additional creditors with related judgments
against NRD, as you described them here as 26, included
[Page 53]
13:51 Mr Benzinge; correct?
A. I'm sorry, can you mention the name again? Including
whom? I didn't understand the name.
Q. Mr Benzinge.
A. He also brought his claim or the copy of the judgment to
be enforced against NRD.
Q. If I could ask that the witness statement be scrolled
down to paragraph 20.
Sir, paragraph 20 of your witness statement says:
"On 9 June 2014 I wrote to NRD and made a formal
demand that they pay Mr Benzinge the RwF 16.3 million
they had been ordered to pay to him in the arbitration
proceedings."
Do you recall saying that as part of your witness
statement?
A. Yes.
Q. And that cites to document R-063, your witness statement
cites to that in footnote 25. If I could ask that that
be shown to him.
Mr [Nsengiyuma], you agree that the document that
you put forward in your witness statement at the notice
of Mr Benzinge's claim does not include a judgment?
A. It's marked -- you see the number of the document of
May 2nd 2014: that's the judgment that was being
enforced. You see the reference ...
[Page 54]
13:54 THE INTERPRETER: The interpreter's apologies: I didn't hear
the number of the reference.
MR COWLEY: Yes, I see it referred to in the document.
I'm simply asking: do you recall that when you gave the
document you called notice of Mr Benzinge's judgment,
you did not give such document with a judgment attached
to it?
A. No, it's automatically annexed.
Q. If I could ask you to go back --
A. As soon as you say "judgment" and you reference it, it
is annexed. So if there is any possible challenge
subsequently. You cannot simply give the number of
a judgment without actually showing the judgment; you
have to show the judgment. And that's annexed, the
photocopy is annexed.
Q. If I could ask FTI to go back up to paragraph 20 of your
witness statement. Your witness statement goes on:
"On [that] same day I also wrote to NRD and
Mr Benzinge and made a formal demand for the amounts due
to the 25 former NRD employees that I was also
representing. I sent the demand letter to Mr Benzinge
as I understood that he was still a shareholder in NRD
and therefore liable for its debts."
Do you see that?
A. Yes, I do.
[Page 55]
13:55 Q. Is that accurate? That's what you believed at that
time: Mr Benzinge was liable for the debts owed to the
other 25 clients on whose behalf you were collecting?
A. I was enforcing the copies of the judgments of the
workers that they held against NRD. And at that time
Mr Benzinge was part of NRD, and NRD was to pay the
amount of 16.3 million.
Q. Mr Nsengiyuma, I'm asking you to focus on the statement
that you served the demand relating to 25 other
employees' debts on Mr Benzinge because, as
a shareholder, he was responsible for NRD debts. Was
that your understanding as you took actions in
June 2014?
A. In June, Mr Benzinge was part of the board of NRD. When
I was there at NRD's office, Barbara and Mr Benzinge
were there, they were together.
Q. My question, sir, was: in June 2014, did you think
Mr Benzinge had to pay NRD's debts to your other
25 clients?
A. No, not Ben. NRD was to pay.
Q. Please explain why it's included in your witness
statement that you considered Mr Benzinge liable for
NRD's debts, so you served a notice of the amount
demanded on Mr Benzinge on June 9th 2014.
A. I gave it to the secretariat, the administrative
[Page 56]
13:58 assistant, the whole dossier stating that NRD had to pay
all of the workers who had not been paid. And
Mr Benzinge was a shareholder of NRD's. On the sheet of
Rwanda Development Board, there are the officials of the
company, and Mr Benzinge's name is amongst those names
as a shareholder.
Q. Why didn't you attach --
THE PRESIDENT: Mr Cowley, could I intervene. Can you give
us some assistance as to how long you're going to be
with this witness? Because you've already substantially
exceeded the estimate and I'm getting rather hungry.
MR COWLEY: Yes, sir. I do believe it's going to be
an hour. That's what I ask.
THE PRESIDENT: Will we have interpreters available until
this witness is finished? Can you --
MR KAPLAN: Mr President, I do believe we have the
interpreters for another hour. I can speak to them
offline as to their availability.
THE PRESIDENT: Can you just enquire. Because if they are
able to stay longer, we can have some lunch.
THE INTERPRETER: Thank you. If we could have an offline
chat, that would be very useful. This is one of the
interpreters speaking.
MR KAPLAN: Yes. FTI, can you please place me in a breakout
room with the interpreters?
[Page 57]
14:00 MR WATKINS: Yes, certainly. Would everyone else like to go
into the breakout room, or would you like to have
everyone stay here while you go into the breakout room
and have an offline discussion?
MR KAPLAN: I think just an offline discussion. We'll be
brief.
MR WATKINS: One moment.
MR KAPLAN: Thank you.
(2.00 pm)
(Pause)
(2.04 pm)
MR KAPLAN: Thank you, members of the Tribunal. (Pause)
Okay, I have conferred with the interpreters and
they have a hard stop of 3.30 London time, which will
give a half-hour break plus one hour remaining for
cross-examination. But it is a hard stop. We will have
one of the interpreters leaving at 3.00, as was
originally planned, and then there will be one
interpreter who will remain solo for another half-hour,
and she cannot exceed a half-hour solo simultaneous
interpretation.
THE PRESIDENT: Very well. We will adjourn now until 2.30
London time. That will give one hour for this witness
to be completed, and the witness must be completed in
that hour.
[Page 58]
14:05 MR COWLEY: Thank you.
(2.06 pm)
(A short break)
(2.35 pm)
MR COWLEY: May I proceed, your Honour?
THE PRESIDENT: Yes.
MR COWLEY: May I ask that the first witness statement be
brought back up and paragraph 20 again be highlighted.
Mr Nsengiyuma, I want to draw your attention in
paragraph 20 to the day that you're speaking to here,
June 9th 2014. In this paragraph you explain serving
notice on NRD for the debt to Mr Benzinge and you talk
about serving notice on NRD and Mr Benzinge of the debt
to 25 other clients. And if I could point out to you
that in your witness statement you say:
"I sent the demand letter to Mr Benzinge as
I understood that he was still a shareholder in NRD and
therefore liable for its debts [and] I hand-delivered
the second letter to the NRD office -- Barbara the
secretary in the office accepted the document but
refused to sign for it."
Why is no copy of a notice of debt owed to 25 other
employees attached anywhere to your witness statement?
A. You have to read the order to pay that is referred to
here.
[Page 59]
14:37 Q. My question is simply: why is no copy of this notice
attached to your witness statement?
A. I gave three orders: the first to pay to Pascal, the
second one to pay Mr Benzinge, and the third order was
to pay the other employees. These are different orders
that are based on different copies of judgments: three
orders to pay.
Q. And that's your answer to my question?
A. Yes.
Q. In the next paragraph -- if I could ask FTI to scroll to
21. I address paragraph 21 not because I'm going to ask
a lot of specific questions about it, but I want to make
sure you're oriented in time. You say the next day --
I'm sorry, you say on June 11th 2014, you then seized
minerals and equipment at NRD's Kigali office because
payments of those debts had not been made. Do you
recall giving that statement?
A. Yes.
Q. And by seizing the Kigali office, that meant that you
locked it up and posted a security firm outside the
office to prevent others from getting in until you were
able to sell the assets inside; correct?
A. That is correct.
Q. And you recall that in the Kigali office when you seized
it, there was both minerals and equipment?
[Page 60]
14:40 A. Yes.
Q. Why is no inventory of the minerals held within the
Kigali office when you seized it, identifying the
minerals and their weight, provided with your witness
statement?
A. In my basic document, those documents are included.
Everything that was found in the office, including the
tables and chairs, everything was inventoried in that
report.
Q. My question again is: why is that inventory not attached
to your witness statement, if it really exists?
A. As I have already told you, I gave a document about
100 pages long. And the particular document that you're
referring to, which is a seizure report drafted by
myself, was included in that 100-page document.
Q. And the document you say exists, it's your position that
it also includes an inventory of exactly what the
equipment consisted of?
A. The equipment that was seized and the mineral that was
seized, then locked up in NRD's office.
Q. If I could ask paragraph 22 to be brought up.
In paragraph 22 of your statement you discuss the
events of the next day, June 12th 2014, in which you
describe similar actions, this time at the offices at
the Nemba concession. Do you recall providing testimony
[Page 61]
14:42 about those events in your witness statement?
A. Yes, I do.
Q. And you say again: after seizing -- which means locking
up -- the Nemba offices, you posted security outside, so
that the materials inside could be secure for sale later
to assess against the debt; correct?
A. That is correct.
Q. Why was no inventory of the minerals and equipment
seized at the Nemba offices attached to your witness
statement?
A. Everything is annexed, everything that I did is annexed.
Q. So --
THE PRESIDENT: Mr Cowley, could I intervene. You are
asking this witness repeatedly why matters are not in
his witness statement. If it is your intention to
invite the Tribunal to infer that matters not in his
witness statement, but spoken to, represent evidence
that is untrue, it would be fair to this witness to make
that plain to him.
MR COWLEY: Certainly.
Mr Nsengiyuma, if in fact you had created
an inventory of the minerals and equipment that were
seized by your locking up the Nemba facility's offices,
that document would have been attached to your witness
statement; correct?
[Page 62]
14:44 A. It is appended in the annex.
Q. Can you identify that, please? And if you could show
him the whole page. Which footnote --
A. It's in the document that I submitted. That's where it
is.
Q. I'm asking you about the witness statement; I'm not
asking you about what you gave to Respondent or their
counsel. So when you say "submitted", I want to be very
clear: are you using that term to refer to what you
attached to your witness statement or what you gave to
Respondent's counsel, or something different?
A. In the witness statement, annexed are all of the
documents that justify what I did, and the reports --
including the reports, reports on the seizures.
Q. Can I ask you to identify, in the footnotes or by title,
the document annexed to your witness statement that you
say constitutes the inventory of the minerals and
equipment seized at the Nemba facility's offices?
A. Can I see the whole document?
Q. Certainly. If you could make it side-by-side pages.
Mr Nsengiyuma, the controller will put up two pages
at a time. We were talking about paragraph 21 a moment
ago with regard to Kigali, and now paragraph 22, which
goes over these two pages. There are footnotes at the
bottom of each page. If you need to go on to any other
[Page 63]
14:47 page, before or after, please let us know and they will
turn to that page.
So the question, again, is: identify the document,
by either footnote number or the title of the document,
that constitutes the inventory of minerals and equipment
that you created when seizing the offices at the Nemba
facility.
A. Well, the thing is, you have to look up the reference
and then produce the corresponding document. The
reports that I produced, both in the Kigali and the
Nemba office, it was handwritten on both occasions. And
so you just have to produce these documents: you'll find
all the details that I did.
Q. Sir, I'm asking you to identify the reference in this
witness statement, and we will call up that document
number.
A. You'll find this at the bottom of the page. You just
need to --
Q. Can you find it, sir, please? And if you can't find it,
just let me know, and I'll accept that answer to the
question and move on.
A. But the numbers are written there. All you have to do
is produce the document with the number on it, and then
on that document you will see everything, black and
white.
[Page 64]
14:48 Q. Okay. I'm going to ask this one last time, sir, because
I want to be very clear: I don't believe it exists,
I don't believe it is referenced. You say it is. So
I'm asking you: since you believe it is, you tell me
which document reference to have them call up.
A. At the bottom of the page, you have a number: you have
the number of the document, you have the reference
number. And then if you take that document, you'll have
the answer to your question.
Q. May I ask that FTI controller please focus on
paragraph 23, enlarge that.
In paragraph 23, witness your statement says:
"A day or so after I had been to Nemba and sealed
the NRD offices with the minerals inside, I was told by
the two RGL security guards that I had left on the site
in Nemba, that NRD's employees had broken into the
office and stolen the minerals."
Do you remember giving that testimony as part of
a witness statement?
A. I recall this, yes.
Q. Do you also recall, at the beginning of your testimony,
acknowledging that a professional bailiff in Rwanda is
liable to secure the property they seized, so that it
could be sold and credited against the debt?
A. That's correct, yes.
[Page 65]
14:50 Q. Isn't it true, sir, that if any inventory of the Nemba
facility's offices contents existed, you don't want
anyone to see it, because you are liable for the loss of
those materials while they were under your control as
seizing them?
A. When the two employees stole the minerals, we took them
to the police station in Nemba and there was a record
that we signed there.
Q. So you weren't there when anybody took the minerals or
any equipment out of the Nemba facility, right?
A. Well, the next day a security guard called me and
I lodged a complaint with the police.
Q. And you can't name anybody that you say stole those
materials; correct? You can't identify them by name?
A. Well, in my record I wrote down the names.
Q. Excuse me?
A. In my record I wrote down the names.
Q. And that record, if it existed, would be attached to
your witness statement to support your position that the
people responsible for the theft are NRD employees, and
not you for lapsed security; correct?
A. Yes, it's in the record. In fact, the name of the
police station is also included in the record.
Q. If I could ask that we go back to paragraph 17. I'm
bringing this up to remind you that in your witness
[Page 66]
14:53 statement you initially described the clients with debt
against NRD as numbering 26, other than Mr Pascal.
Do you recall, if you could go down to
footnote 20 -- do you see footnote 20 there? Yes, thank
you. Do you recall that what you cited in support of
identifying 26 employees with debts against NRD is
document Exhibit R-066? Do you recall identifying that
document in support of your identification of your
25 other clients?
A. We were at the police station, we gave all the names, we
said everything that I was doing. Mr Marshall summoned
me to the police station. The names, the phone numbers
of everybody who demanded to be paid by NRD, the list
was drawn up. The names and the phone numbers --
Q. May I ask that R-066 be brought up, and if you can focus
on paragraph 1.1.
The document that you referred to as containing
names of 26 creditors that you provided notice of to NRD
actually only contains 7 names; isn't that correct?
A. Yes, the names that I listed there are the names of
those people who came to my office to sign a contract
with me to recover the amounts due to them.
Q. And those were the only names provided in this document;
correct?
A. There are other names that I've not mentioned. There's
[Page 67]
14:56 a whole list, a comprehensive list. When I was
summonsed by the police, I had to produce the list of
all the names, and indeed I produced the copies of the
rulings listing all the people who demanded payment from
NRD. This is just a small portion: the people who
actually came to the office to sign the contract with me
to execute the order.
Q. Sir, it's true, is it not, if you provided a list of
26 names, you kept a copy of it -- let me strike the
question. Let me ask it this way.
It's true, is it not, that you kept a copy of the
comprehensive list of names that you provided the police
that day; correct?
A. Yes, and in the document that I produced, the list is
included there as an annex. It is there.
Q. Well, you'll certainly agree with me, sir, that you're
capable of providing a copy of the document you provided
to the police; correct?
A. Yes.
Q. The Shema Ernest that's identified as one of your
clients, is that the same Shema on whose behalf you say
you provided notice to NRD by giving Shema a copy that
was signed for?
A. Well, when I produced the letter, Shema was still
working for NRD at the time. But one or two years
[Page 68]
14:58 later, I don't remember exactly, but she was kicked
out -- or he was kicked out. He came to my office and
asked me to execute the ruling on his behalf.
Q. To be clear, it's the same Shema that you said accepted
notice of the claims of all 26 --
A. Yes, and he --
Q. -- creditors? I'm sorry, I spoke over you. I want to
just be clear. You're saying that the same Shema that
accepted notice of the debt owed to 26 creditors on
behalf of NRD is the Shema that's named in this
document; correct?
A. Well, when he signed the document -- at the time when he
received the notice, he was a NRD employee. But when he
was kicked out and he produced the copy of the ruling,
he came to my office to ask me in turn to execute the
ruling in his favour.
Now, there was one or two years' gap in between.
Q. It's true, is it not, sir, that you had never paid any
of the creditors the value of the inventory that was
stolen from the Nemba facility's offices while they were
under your control, having seized that office; correct?
A. Can you repeat the question, please?
Q. Yes. Remember your testimony that after you seized the
Nemba facility's offices, you came back a couple of days
later to find that minerals were stolen; you blamed NRD
[Page 69]
15:01 1 employees. Do you remember that testimony?
2 A. In Nemba, yes.
3 Q. You agree that you have never provided payment of the
4 value of the inventory stolen while it was under your
5 seizure to any of the creditors; correct?
6 A. Well, when the NRD employees stole the NRD minerals, the
7 next day I took them to the police station; and when
8 they were taken to the police station, I was able to
9 complete my work.
10 Q. Did you recover minerals, sir, and sell them for the
11 debt?
12 A. No, I didn't sell anything from Nemba.
13 Q. And you didn't pay the value of those minerals to any of
14 the creditors; correct?
15 A. I didn't sell anything in Nemba, and it wasn't for me to
16 pay anything. It should have been for the thieves to
17 pay it.
18 Q. If I could ask that paragraph 27 of the witness
19 statement be focused on, and [R-]66 could be reduced.
20 In paragraph 27 of your witness statement you
21 testify about a meeting at NRD's offices on June 25th
22 that was arranged for the day before, and at this
23 meeting Mr Marshall, Ms Mruskovicova and Mr Benzinge
24 were all present, among others. Do you recall providing
25 testimony about that meeting in a witness statement?
[Page 70]
15:03 1 A. Yes, I do.
2 Q. And your testimony says, among other things:
3 "I told them that my only duty was to open the
4 office as had been agreed and that if they did not want
5 to work with Mr Benzinge that was a matter for them."
6 Do you recall that testimony?
7 A. Yes, I do, sir.
8 Q. Who gave you the instruction that created that duty?
9 A. Mr Marshall had lodged a complaint [with] the Ministry
10 of Justice claiming that Bosco had closed the office and
11 so they were not in a position to pay employees, and
12 that Bosco was using forged documents, and the Ministry
13 of Justice therefore asked me to produce all the
14 documents and to re-open the door. They actually
15 indicated the date at which I was supposed to report to
16 NRD with officials from the Ministry of Justice, so that
17 I should open the doors and so that Mr Marshall could go
18 in and pay his employees.
19 I followed these instructions from the Ministry of
20 Justice. And so we went to the NRD offices, I did open
21 the door, and that's -- I completed my duties.
22 Q. To be clear, it's your testimony that you believe you
23 were instructed by the Ministry of Justice to open the
24 door and give the keys, control of those offices,
25 equally to Mr Marshall, Ms Mruskovicova and Mr Benzinge;
[Page 71]
15:06 1 you believe that was your instruction?
2 A. Yes, sir. These were my instructions.
3 Q. Now, you seized the office originally believing you were
4 enforcing an arbitration award; correct?
5 A. Yes.
6 Q. And you understood turning the office over [in] the way
7 you just described is inconsistent with what you read
8 the arbitration award to say, isn't it?
9 A. No, that's not the case. Mr Marshall had lodged
10 a complaint with the Ministry of Justice claiming that
11 I had been using forged documents or false rulings. The
12 Ministry of Justice then sent me a letter suspending my
13 functions vis-à-vis the NRD case: I was asked to desist
14 from that case and no longer attempt to execute that
15 ruling.
16 Having received this order, this summons from the
17 Ministry of Justice the cease-and-desist on execution on
18 NRD, that was the end of my duty. So I returned the key
19 and that ended my functions.
20 Q. Are you saying that the Ministry of Justice told you
21 they considered the arbitration award forged, so you had
22 to return the office to Mr Marshall and Ms Mruskovicova,
23 among others?
24 A. No. The Ministry of Justice, on the basis of the
25 complaint lodged by Mr Marshall, who was claiming that
[Page 72]
15:08 1 I was using forged documents, on that basis the minister
2 ordered me to stop my activities against NRD and to
3 return the entire file to the Ministry of Justice. And
4 the keys were to be returned to the NRD executives, and
5 Bosco -- that is myself -- was left aside.
6 Q. Based on the arbitration award that you say you were
7 acting consistent with, who did you believe the NRD
8 executives to be?
9 A. I don't know who these executives were. You had to read
10 the list of RDB, Rwanda Development Board. When the
11 list of corporate officers of the company were listed,
12 the Rwanda Development Board lists who the executives
13 are, these corporate officers. There were names,
14 including Ben Benzinge and others.
15 Q. I asked you who you determined it to be. Is it your
16 testimony that when you were instructed to turn the
17 offices back over to executives, you looked at the list
18 of officers: it included Mr Benzinge, Mr Marshall and
19 Ms Mruskovicova? Is that your testimony?
20 A. Well, we looked up the list of the shareholders of NRD
21 at the Rwanda Development Board. We, together with
22 Ms Mruskovicova, Ben Benzinge and Marshall, we went
23 together to the offices of the Ministry of Justice, and
24 they said that, "On that date you have to report to the
25 offices, Mr Bosco will return the keys, and that will
[Page 73]
15:11 1 complete his duties".
2 On said day, I reported with the keys, I opened the
3 doors, and that completed my duties, in the presence of
4 officials from the Ministry of Justice.
5 Q. Based on your review of the arbitration award that you
6 said you were enforcing and checking again yourself at
7 the RDB, you confirmed that Mr Benzinge was only a 15%
8 shareholder; correct?
9 A. Well, that wasn't my concern.
10 Q. You know that minority shareholders don't get keys to
11 the offices and allowed to run the operations,
12 don't you?
13 A. Well, my instructions were simply to stop the execution
14 in NRD. My instructions were to open the doors of NRD
15 in the presence of officials from the Ministry of
16 Justice. Those were my instructions.
17 We had had a meeting before. Minutes were drafted
18 at the Ministry of Justice. And on the indicated date
19 at the indicated time, I duly reported to produce the
20 keys in the presence of officials from the Ministry of
21 Justice, and that completed my duty.
22 Q. When deciding how to turn the keys over to the people in
23 charge of NRD, did you take any action to reach out to
24 the majority shareholders and ask them how they wish to
25 secure their company?
[Page 74]
15:13 1 A. Again, that was not my concern. There had been
2 a meeting at the Ministry of Justice, in the presence of
3 Marshall, Benzinge and Ms Mruskovicova, saying that on
4 that date the doors would be opened; that Bosco
5 i.e. myself -- would open the door, would turn the keys,
6 and go away. And it was not my concern to know who was
7 a minority or majority shareholder; that was not my
8 concern. My job was to open the doors and leave.
9 Q. You agreed with me at the beginning of your testimony
10 that part of your responsibilities as a professional
11 bailiff is to maintain the security of the assets you
12 seize. Do you recall agreeing that that's your
13 obligation?
14 A. I quite agree. 100%.
15 Q. What was the Zarnacks' position about whether they would
16 come to Rwanda or send a representative to take control
17 and secure NRD?
18 A. Can you repeat the question, please?
19 Q. What was the Zarnacks' position [about] whether they
20 were willing to come to Rwanda themselves or send
21 a representative to take control of NRD?
22 A. Who are Zarnacks? I'm sorry. Who are Zarnacks?
23 I don't know them.
24 Q. Did you even read the arbitration award?
25 A. Yes, I did. You have to look at who owned the company,
[Page 75]
15:15 1 RDB, the Rwanda Development Board, and they say clearly
2 who are the shareholders. And the shareholders, you had
3 Marshall, you had Ben Benzinge, you had Zuzana, and
4 there was somebody else, I don't recall who. And these
5 were the shareholders of the company.
6 Q. It's your testimony that you were told that by the RDB
7 before June 25th 2014, and you're handing the keys back
8 over to Mr Benzinge: you tried, you say, to Mr Marshall
9 and Ms Mruskovicova, as well, but they, you say,
10 wouldn't accept the keys and walked away. Is that your
11 testimony?
12 A. Yes, under the supervision of the Ministry of Justice.
13 Marshall had suggested that Bosco should desist from the
14 execution. The Ministry of Justice set me aside, and
15 made an appointment so that I should open the doors and
16 that the owners then take over. And from that time on,
17 that completed my job.
18 Q. Sir, I was just trying to get clear when you say: in
19 order to determine the shareholders of a company, you
20 have to confirm with RDB. I'm asking you just simply to
21 focus on this question: is it your testimony you did in
22 fact check with the RDB to get an answer to that
23 question before turning keys back over to anyone on
24 June 25th 2014?
25 A. Yes, I did check.
[Page 76]
15:17 1 Q. And you say your actions were consistent with the
2 instructions of RDB?
3 A. Well, RDB -- what instructions were RDB? RDB -- it is
4 RDB's duty to say who is the shareholders of the
5 company. They simply gave you the names: A, B, C and D.
6 RDB produced the documents to the effect that the
7 shareholders were Marshall, Ben and the others, and it
8 was not for me to challenge that document to RDB.
9 THE PRESIDENT: Mr Cowley, you have ten minutes, leaving
10 Mr Hill three minutes for re-examination.
11 MR COWLEY: Thank you.
12 Can I ask that R-[77] be brought up. (Pause)
13 At some point, Mr Nsengiyuma, you agree that the
14 Ministry of Justice informed you [that] you were free to
15 continue collecting on judgments against NRD; you
16 testify to that, correct?
17 A. Yes.
18 Q. R-077 is a document -- looks like it's in English --
19 that provides information about an auction in
20 February 2015 in which a car seized from Mr Marshall was
21 auctioned; correct?
22 A. Yes, sold by Bosco.
23 Q. So you were still trying to collect into 2015, and at
24 this point you were going after the personal assets, the
25 personal car of Mr Marshall; correct?
[Page 77]
15:19 1 A. No, not the assets of Mr Marshall; of NRD.
2 What should be noted: having given all of NRD's
3 documents -- that is the copies of the judgments -- to
4 the Ministry of Justice, these were checked. After
5 a period of two or three months, the minister came to
6 the conclusion that all the copies of the judgments that
7 I had used were appropriate, correct. And so he ordered
8 NRD, represented by Mr Marshall, to pay all the workers
9 who had these judgments in their favour; and if this
10 were not done, then he authorised Bosco to continue with
11 his work, my work.
12 After, when I received the letter from the minister,
13 I told NRD, "You must pay or the car will be sold".
14 Mr Marshall refused to pay. And this is how NRD's car
15 came to be seized and auctioned in order to pay the
16 amounts owed under the judgments.
17 Q. Mr Nsengiyuma, you agree you never took action to seize
18 any assets of Mr Benzinge, as shareholder of NRD, to pay
19 your other clients' debts; correct?
20 A. No, that is forbidden. You do not take the -- you do
21 not seize the belongings of the shareholders. The
22 bailiff seizes the assets of the company, not individual
23 assets. The car that Mr Marshall drove was registered
24 as an NRD asset, so it was not a personal vehicle.
25 Q. You'll agree that you never went back -- after the
[Page 78]
15:22 1 Ministry of Justice said you could continue to collect
2 debt against NRD, you'll agree you never went back and
3 seized any of the concessions or their offices again;
4 correct?
5 A. I sold the car that I had seized.
6 Q. Yes. Sir, that's not my question. You agree that you
7 never went back to the concessions or the offices and
8 seized those again; correct?
9 A. Well, there was what had already been seized, such as
10 the car used by Mr Marshall, which I told when the
11 authorisation came from the Ministry of Justice.
12 Q. You'll agree, sir, that someone instructed you not to
13 seize any of the concessions again, to let whatever
14 mining was going on there continue; won't you agree with
15 that?
16 A. No. The bailiff receives no orders from anyone to
17 conduct his work. The bailiff enforces the judgment.
18 MR COWLEY: I have no further questions.
19 (3.24 pm)
20 Re-direct examination by MR HILL
21 Q. Mr Nsengiyuma, you were asked about a document at R-051,
22 if that can be put up on the screen. And could I also
23 have it in the French as well, please, up on the screen,
24 one beside each other.
25 It's coming up in French in a moment, Mr Nsengiyuma.
[Page 79]
15:24 1 You recall you were asked some questions about
2 whether or not there were judgments annexed to this
3 document; do you remember those questions?
4 A. Yes, that question was put to me.
5 Q. Now, I'm going to ask you to look at the third paragraph
6 of the document, which in French starts "Vu le jugement
7 RSOC..."
8 Could you just explain what was said at the end of
9 that paragraph, with the words "dont la copie est en
10 annexe"?
11 A. NRD, through Mr Marshall, went to the courts and sued to
12 reverse the enforcement and the seizures that I had
13 begun to undertake. The court asked him, "Have you paid
14 up the amounts owed to employees?" He answered that he
15 had not. The court said, "Then we shall carry on with
16 enforcement".
17 Q. Then if you just focus on my question, Mr Nsengiyuma.
18 Where it says in this paragraph -- the closing words --
19 "dont la copie est en annexe", what were you doing with
20 this document and with the judgment?
21 A. Enforcement was underway. Mr Marshall brought
22 proceedings against me. The court decided that
23 Marshall's claim and NRD's claim was groundless, so
24 automatically the enforcement that I had stopped could
25 resume. And for me to resume with the enforcement
[Page 80]
15:27 1 procedure of the judgment, I had to append, I had to
2 annex the judgment that authorised me to continue with
3 the or to resume the enforcement, that said that NRD
4 had not paid, and therefore the enforcement could
5 resume.
6 MR HILL: Thank you, Mr Nsengiyuma.
7 THE PRESIDENT: Thank you very much indeed for coming to
8 assist us. You are now free to leave.
9 (The witness withdrew)
10 MR HILL: Mr President, the next witness is going to be
11 Mr Imena.
12 THE PRESIDENT: Yes. (Pause)
13 MR COWLEY: Mr President, if I may ask while we have
14 a moment, what's the preference in terms of the schedule
15 for breaks from here?
16 THE PRESIDENT: I think we'll have the next half-hour break
17 at 4.15, and there will be one final break of 15 minutes
18 before we conclude at 7.00.
19 MR WATKINS: Okay, we are bringing the witness in now.
20 THE PRESIDENT: Maybe we'll have the break at 4 o'clock:
21 that would balance the rest of the day better. (Pause)
22 (3.31 pm)
23 MR EVODE IMENA (called)
24 THE PRESIDENT: Good afternoon, Mr Imena. On your screen
25 you should see a witness declaration: would you please
[Page 81]
15:31 1 repeat that aloud?
2 MR IMENA: I solemnly declare upon my honour and conscience
3 that I shall speak the truth, the whole truth and
4 nothing but the truth.
5 THE PRESIDENT: Thank you.
6 MR HILL: Thank you.
7 (3.31 pm)
8 Direct examination by MR HILL
9 Q. Mr Imena, did you work with Mr Dominique Bidega when you
10 were at OGMR?
11 A. Yes.
12 Q. Do you recall Mr Bidega retiring from the OGMR?
13 A. Yes, I remember.
14 Q. What can you remember about the circumstances of
15 Mr Bidega's retirement?
16 A. So I remember he retired at the end of 2011. At that
17 time they were restructuring from OGMR, changing into
18 a new institution. And as I was working there, so we
19 were given some of those new positions: for instance,
20 Bidega was given a new position as an officer in charge
21 of inspection, and he was demoted from his previous role
22 as a director in charge of inspection and regulation.
23 So at that time he was not feeling happy about that.
24 And then he started showing signs that he's not happy
25 with the decision made in September 2011 to change his
[Page 82]
15:32 1 position, because his salary was reduced and he was
2 given a position that would require a lot of fieldwork,
3 and his health situation was not allowing him to perform
4 fieldwork. So he showed signs that he was not happy,
5 and he ended up being given a retirement or quitting the
6 institution at the end of the year.
7 MR HILL: Thank you, Mr Imena. Now, Mr Cowley represents
8 the Claimants and he's going to ask you some questions
9 now.
10 MR IMENA: Okay.
11 (3.33 pm)
12 Cross-examination by MR COWLEY
13 Q. Good afternoon, Mr Imena.
14 A. Good afternoon, sir.
15 Q. Please let me know if I saw correctly: to my eye, it
16 appeared that you may have carried papers with you into
17 the exam room, and that may be on the table in front of
18 you. Is that accurate?
19 A. I have these papers, as well as my witness statement.
20 MR COWLEY: May I ask that any papers -- if there's someone
21 else in the room from the Respondent, or someone could
22 go into the room from the Respondent and take any papers
23 or any previously prepared materials away and held
24 safely for Mr Imena.
25 MR IMENA: There's no one in this room. I have my printed
[Page 83]
15:34 1 witness statement. I thought I was allowed to have
2 them. But they can be taken away, if that's the
3 instruction.
4 MR HILL: I think he is permitted to have his witness
5 statement.
6 THE PRESIDENT: Yes.
7 MR COWLEY: There's no way I can take the time to try to
8 check what's on each page through Mr Imena and whether
9 there's other materials or information written there.
10 So I would certainly just request the courtesy to not
11 leave any question about whether there's something more
12 on that version than on others. And as Respondent's
13 counsel knows, we have been relying with all the
14 witnesses on pulling up and giving them an opportunity
15 to review as much of their witness statements as they
16 need before answering questions about it.
17 MR IMENA: So let me just bring them out of the room.
18 THE PRESIDENT: That's a good idea.
19 MR IMENA: Okay. (Pause)
20 MR COWLEY: Thank you, Mr Imena.
21 MR IMENA: You're welcome.
22 MR COWLEY: I'm going to ask that the first witness
23 statement indeed be brought up, and paragraph 9 focused
24 on.
25 So I'm skipping over some prior paragraphs. To
[Page 84]
15:36 1 orient you, in paragraphs prior to this you provide your
2 background, professional background, including your time
3 with the am I pronouncing this correctly, is this how
4 you pronounce it -- the agency, the ministry that's used
5 as an acronym here, I pronounce "MINIRENA". Is that how
6 you pronounce it?
7 A. Yes.
8 Q. So you provide some background about your time with
9 MINIRENA and the positions you hold. And I'm picking up
10 at paragraph 9, and there's two time periods covered.
11 First, you mention "shortly after [you] were
12 appointed in February 2013". You've already explained
13 in prior paragraphs that that's when you were appointed
14 the minister.
15 Then you go in the next sentence backwards in time,
16 and that's what I want to focus on. You say that:
17 "[You were] already familiar with the file as in
18 May 2012 I had been asked to evaluate NRD's application
19 for new five year licences made in November 2010 ..."
20 You referenced "file" there. Do you recall what
21 you're referring to is the NRD relationship with
22 MINIRENA?
23 A. Can you repeat, please, your question?
24 Q. Yes. The reference to being "familiar with the file",
25 you're talking about NRD's file in that paragraph,
[Page 85]
15:38 1 right?
2 A. Yes.
3 Q. Who asked you in 2012 to review the NRD November 2010
4 application?
5 A. I was asked that by my superiors, my supervisors at
6 Rwanda Natural Resources Authority, Geology and Mines
7 Department.
8 Q. And by name, who asked you?
9 A. I think at that time it was Mr Francis Kayumba.
10 Q. And when you were asked to review it, what were you told
11 to review it for, what purpose?
12 A. It was to make an assessment of the application file and
13 give recommendations as a geologist.
14 Q. I'd like to be clear about the reference to "file".
15 Literally, are you referring to a file that consolidated
16 all of whatever, within MINIRENA, was considered to be
17 the important materials to hold together in some form of
18 filing system, so a physical file; or is that an offhand
19 reference referring to any and all documents, wherever
20 found in the computer system, but not all together in
21 one place?
22 A. There were documents on hard copies and there were
23 documents on soft copies.
24 Q. And that means on the computer system?
25 A. Yes.
[Page 86]
15:40 1 Q. Now, when you were told to make an assessment of the
2 2010 application at this time, were you told assessment
3 of that application had already started by some previous
4 person or persons?
5 A. Yes, it was a file that had been at the ministry since
6 some years, but there were additional documents that
7 were brought in. So I had to make an assessment of all
8 the information that was available to me at that time.
9 Q. Well, obviously the relationship with NRD, including in
10 document form, predates, goes back in time before the
11 November 2010 application itself. So I'm not referring
12 to the fact that there were prior materials before that
13 application.
14 But to ask my question again, and perhaps be
15 clearer, when you were asked to make an assessment of
16 the November 2010 application, were you told whether one
17 or more assessments of that application had already been
18 started by others?
19 A. Yes, my supervisor at that time had already made
20 an assessment. He was called Dr Michael Biryabarema.
21 He had already made an assessment.
22 Q. Was that in writing?
23 A. Yes, it was in writing.
24 Q. Was it part of the hard file or only the soft file,
25 internal computer files?
[Page 87]
15:41 1 A. I'm sorry, I don't remember if it was hard file or soft
2 file.
3 Q. Who was it circulated to?
4 A. The report I made was circulated to Francis and
5 copies
6 Q. I'm sorry, I asked a poor question. And it would be
7 rude to interrupt, but I want to make sure my question
8 aligns with your answer, and I think I asked a poor
9 question. So let me start again.
10 Who was is it fair for me to call him
11 "Dr Michael": you'll understand who I'm referring to?
12 A. Yes.
13 Q. Your supervisor. So who was Dr Michael's assessment
14 that predated yours, who was that circulated to?
15 A. I don't remember. But I got a copy of that assessment.
16 I don't remember all the people who had access to that
17 assessment.
18 Q. Was it provided to NRD?
19 A. I don't remember. I don't think it's appropriate to
20 speculate.
21 Q. When was it created?
22 A. The report of Dr Michael was created before my May 2012
23 report. I don't -- right now, I don't remember the
24 date.
25 Q. Is it attached to your witness statement in any way? Do
[Page 88]
15:43 1 you recall discussing it and referring to it in any of
2 your witness statements?
3 A. That report is referred to in my May 2012 report.
4 Q. And is it attached to it?
5 A. I would need to check if it is attached to it.
6 Q. Did it come to a conclusion, Dr Michael's assessment?
7 A. Dr Michael's report, yes, made some conclusions.
8 Q. Did any information in the file state whether his
9 conclusions were communicated to NRD?
10 A. I'm sorry, I don't remember.
11 Q. Did you rely on and by that, I mean did you copy
12 any of Dr Michael's work product in his assessment when
13 you created your own?
14 A. I relied on information provided in his report, as well
15 as information from other reports.
16 Q. Well, let's identify those for a moment. Did you look
17 at the November 2010 application, did you read that in
18 full?
19 A. Yes.
20 Q. What are the reports, if any, beyond the November 2010
21 and Dr Michael's assessment
22 A. There was another report that was submitted by NRD: it
23 was a summarised investment plan for the year 2012 to
24 2017. That report I think was submitted by NRD in July.
25 Q. Of what year?
[Page 89]
15:45 1 A. In July 2011.
2 Q. When you picked up the file and started work on the
3 assessment, what was your understanding of whether there
4 was any communication with NRD about the 2010
5 application prior to your being asked to create
6 an assessment?
7 A. Any communication from my side?
8 Q. Yes.
9 A. No. I don't remember any communication from my side to
10 NRD before May 2012.
11 Q. Did anyone from MINIRENA ever explain to NRD why there
12 was no communication back to it about its November 2010
13 application as of May 2012?
14 A. NRD had been informed by the minister on several
15 occasions after their application in 2010. That is what
16 I remember.
17 Q. Were there discussions with other concession holders
18 about their applications during that same time period,
19 November 2010 to May 2012?
20 A. There might have been applications around that time by
21 other concession holders.
22 Q. Yes, and I'm only referring to the ones that had
23 submitted applications. Did MINIRENA engage in
24 discussions with those concession holders about their
25 applications during the time period where there wasn't
[Page 90]
15:47 1 communication back to NRD about its application?
2 A. So if I heard properly, your question is -- you're
3 asking if there were communications between MINIRENA and
4 applicants between 2010 and 2012?
5 Q. Yes.
6 A. Yes, MINIRENA had been communicating with concession
7 applicants, concession holders during that period of
8 time.
9 Q. So you'll agree that as of November 2010, when NRD
10 submitted its application, there were other initial
11 concession holders, short-term concession holders, whose
12 licences were coming to the end, and that applied for
13 continued or long-term or short-term, but some new
14 licence to continue with the concession; you'll agree
15 with that, correct?
16 A. I didn't get the answer the question properly. But
17 for instance, I remember Bisesero concession was being
18 treated around that time, 2010.
19 Q. And I want to ask about all of them. So let me ask
20 a broader question.
21 There were a number of initial-term concession
22 holders with limited-term -- four- or five-year --
23 exploratory licences that were issued for various mining
24 concessions; correct?
25 A. Yes, there were many different licences that were issued
[Page 91]
15:49 1 for short term.
2 Q. So for the short-term licence holders with large
3 concessions, how many were there whose initial licence
4 term was coming up in or around 2010 that either would
5 apply to continue in some fashion or give it up?
6 A. I don't remember the number, unfortunately.
7 Q. Has it ever been recorded within MINIRENA how each
8 initial short-term licence or concession holder, how its
9 continuation process was either continued or not? Have
10 you ever seen a chart or a summary or something tracking
11 all of them, focusing on the large mines, if there's
12 differences, not on the very small ones?
13 A. I think if we -- if we check, I think we can get some
14 documents. Because there had been a change around
15 2005/2006, when the government started to do
16 a privatisation programme, and at that time private
17 investors were invited to take over the former
18 government concessions, including the ones that were
19 held by NRD.
20 So there were various former government concessions
21 that were granted to various companies. So I don't --
22 right now I don't remember the exact number of those
23 concessions that were granted. But if we check, we can
24 get that number.
25 Q. And within the total number during this privatisation
[Page 92]
15:51 1 period, will you agree with me that some subset were
2 treated as, and perhaps sometimes called by, the term
3 "large-scale mining concessions"?
4 A. Can you repeat, please?
5 Q. So you mentioned the fact that there was privatisation
6 of mines, mining concessions, that began in 2005, and
7 that there was some wide number of licences and
8 discussions that went forward after that. So I want to
9 figure a way to come to language that we're both
10 understanding or agree that refers to a particular
11 subset. That's the purpose of my question, and really
12 nothing more.
13 So within that time period where initial
14 privatisation of mining concessions occurred, was there
15 some subset of such concessions that were treated as
16 "large-scale mining concessions", and looked at and
17 referred to either with that term or another that meant
18 the same thing?
19 A. No. At that time companies were given short-term
20 licences to conduct both mining and exploration. There
21 were no large-scale concession licences given at that
22 time.
23 Q. Okay. And just to be clear, we're talking about
24 2005/2006?
25 A. Yes.
[Page 93]
15:53 1 Q. By statute of 2008, there was a defined term, defined
2 subset, called "large-scale concessions"; correct?
3 A. Yes, with the 2008 law, we had what we call the
4 "concession licence".
5 Q. Okay. Now, as of the 2008 law and the term that
6 referred to "large-scale mining concessions", the subset
7 that would come to fit with that term, a number of them
8 had been issued in the 2004/2005/2006 time period, and
9 their initial exploratory licence phase was coming to
10 the end in and around 2010; correct?
11 A. You are right.
12 Q. How many?
13 A. I don't remember the number. I'm sorry.
14 Q. Is it more than 10?
15 A. Something of -- I don't remember the number.
16 Q. Okay. Let me ask it this way. After 2008, and the
17 definition of the "large-scale mining concessions"
18 that's defined differently than those that are smaller
19 than it, from that time on, have there ever been
20 additional new large-scale mining concessions added to
21 that sub-group, or have they always remained constant?
22 A. If I got properly your question, the licences that were
23 issued in 2005 and 2006, they expired about 2009/2010,
24 and some of them were applying for other mining
25 licences. But in that period of time, no one was
[Page 94]
15:55 1 given -- just after the 2008 law, no one was given
2 a concession licence.
3 Q. My question is a little different, and I apologise then
4 if I asked it poorly. But I'm simply trying to get
5 a sense of the number, as best we can, of similarly
6 situated mining concessions. I want to refer to the
7 similarly situated ones and sort of exclude from my
8 questions applicability of my questions to all the
9 others.
10 So I'm just going to stick with it from the point of
11 view of just seeing if we can reach agreement as to the
12 subset of mining concessions over the years that fall
13 within a similar category.
14 So in 2008 you agreed with me that there came to be
15 a defined term "large-scale mining concessions". And my
16 question is
17 A. Yes.
18 Q. -- the number of concessions that met that defined term
19 in 2008, has that number increased since 2008?
20 THE PRESIDENT: Mr Cowley, I don't understand this witness
21 to have said that anyone had such a concession.
22 I understood him to say that there are a number of
23 applicants who had obtained four-year licences with
24 a view to applying at the end of the four years for
25 a concession, and that not one of those was granted
[Page 95]
15:56 1 a concession at the end of the four years. I, like you,
2 would like to have an idea of a ballpark figure of how
3 many applicants we're talking about.
4 MR COWLEY: Sir, I was asking a poor question if my
5 reference to the concessions -- in other words, that
6 a licence was actually issued was part of my
7 question. I wasn't trying to make it part of my
8 question. So a poor question asked twice. I'm sorry
9 for that.
10 THE PRESIDENT: That's alright.
11 MR COWLEY: But let me try again.
12 The number of potential large-scale mining
13 concessions, because they met the different definition
14 of the size, should they be issued, has that number
15 remained constant since 2008?
16 A. You are comparing since 2008 to today or 2008 to 2010?
17 Q. Just: has it remained constant? If it hasn't remained
18 constant, then I'll try to sharpen my question. But if
19 it doesn't need sharpening, I'm just trying to get to
20 the key part of this line, is just: what's the
21 approximate number we're talking about?
22 So, again, with apologies for repeating the question
23 over and over again, has the number of potential
24 large-scale mining concessions, because they would, if
25 issued, meet the size definition of the 2008 statute,
[Page 96]
15:57 1 has that number been constant since 2008, or have there
2 been new potential large-scale mining concessions that
3 have come online or become available at some point in
4 time, so the number changed?
5 A. So I will try to answer what I remember properly, and
6 that was the time when I was a minister. So when I was
7 a minister, we issued a few -- like, three to four, if
8 I'm correct large-scale mining licences, and that was
9 around 2015 and beginning of 2016.
10 So what I was saying is that between 2008 and 2014,
11 there's no company that was given what we called the
12 "concession licence" under the 2008 --
13 Q. I understand that, and I'm not trying -- we're going to
14 be getting into it. Different purpose, and I don't mean
15 to cut off the questioning because we'll get back to it.
16 But you said as of 2016, when you left, three or
17 four large-scale mining concessions had been granted by
18 MINIRENA?
19 A. That is what I remember when I was still there. But
20 since 2016, the number has increased, because the mining
21 board has issued other licences.
22 Q. That's fine. I just want to as of 2016, you said
23 three or four had been issued. How many other
24 independent mines had applicants made a request for
25 a large-scale mining concession, but it hadn't been yet
[Page 97]
15:59 1 allowed as of the time you left in 2016?
2 So there were three or four that were allowed, and
3 I'm not asking about the number of applicants because
4 they would need more than one for a mine. But how many
5 other potential mining concessions were subject to
6 applications that hadn't been decided as of 2016,
7 large-scale?
8 A. If I got properly your question, I would say that the
9 cases I remember, companies that applied for mining
10 licences that might be considered as large-scale, and
11 didn't get them, we can include NRD, we can include
12 Rwanda Minerals and Mining, we can include Roka Rwanda,
13 we can include Trans Africa. So those are the ones
14 I'm just remembering for the moment.
15 Q. And those were all for different potential concessions,
16 or were any overlapping?
17 A. Can you repeat, please?
18 Q. Yes. Those are all for -- if they all received
19 concessions, would they all have different mining
20 concessions, or were any of those applicants for the
21 same concession, or potential concession?
22 A. It was on different areas, different concessions.
23 Q. Okay. I appreciate that.
24 So of the potential eight that you can recall,
25 you've now identified four that you recall not being
[Page 98]
16:01 1 awarded as of the time you left. What were the three or
2 four large-scale mining concessions that had issued as
3 of your departure from MINIRENA in 2016?
4 A. So if -- for maybe the clarity of my question,
5 a large-scale mine is determined on the basis of the
6 reserves of the deposits that were identified: the
7 reserves, the investment plan and the production plan.
8 So it's not the ministry that was the one to determine
9 that this will be a large-scale mine; it was the work
10 and the outcome of the work by the applicant that will
11 help the ministry determine if this mine falls in which
12 category.
13 So for the ministry, the basis was to issue
14 an exploration licence, and then you conduct your
15 studies and you came up and you say, "I'm applying for
16 this type of licence".
17 Q. Thank you. Mr Imena, the three or four that you said
18 as you recalled, at the time you left your position with
19 MINIRENA, your position as minister, three or four
20 large-scale mining concessions had been issued. I just
21 ask you to name them.
22 A. Yes. If I remember properly, there was Musha, Musha
23 mine; Nunga(?) mine, that was a joint licence; there was
24 Rutongo mine; there was Nyakabingo mine, and so those
25 are the ones I remember for the moment. There might be
[Page 99]
16:03 1 others, but at least those are the ones I remember.
2 MR COWLEY: Thank you.
3 Mr President, I've gone, I think, a few minutes past
4 the stated --
5 THE PRESIDENT: Yes, I think we'll break for half an hour.
6 MR COWLEY: Thank you.
7 (4.04 pm)
8 (Adjourned until 4.34 pm)
9 (4.35 pm)
10 THE PRESIDENT: Thank you. Let us continue.
11 MR COWLEY: Thank you. Before I start, Mr President, please
12 let me know what the preferred time is for the break.
13 THE PRESIDENT: Well, around about 6 o'clock.
14 MR COWLEY: Thank you.
15 Mr Imena -- if we could focus again back at R-040,
16 please, FTI -- this analysis, how long did it take you?
17 How long did you work on this?
18 A. It can take a few days.
19 Q. And when you were done, what did you do with it? What
20 happened with this document?
21 A. I sent it to my supervisor and copied it to other
22 colleagues. My supervisor was Francis Kayumba.
23 Q. And the other colleagues? If there's many of them, just
24 tell me that there's a number.
25 A. They include Dr Mike Biryabarema. They include
[Page 100]
16:36 1 Alison George. She was the coordinator of a project
2 that was working in the ministry. And other colleagues,
3 such as Peter Martin Niyigena, Celse Gabinema, who were
4 working with me.
5 Q. Is there a reason why there's no documentation showing
6 how this document was treated, how it was transmitted,
7 what was done with it, attached to your witness
8 statement?
9 A. What I remember is that Francis received it and he gave
10 a comment on it, and Alison George gave it to the
11 minister, as well as the permanent secretary.
12 Q. Was there some sort of process whereby an action was
13 taken or decided not to be taken as a result of your
14 submission of this evaluation marked R-040?
15 A. Apart from the comment I received from Francis Kayumba
16 and the note from Alison George, the rest was beyond my
17 role.
18 Q. Do you know if at any point before it was given to the
19 minister there was some meeting of those within OGMR or
20 otherwise to discuss and agree on any action as a result
21 of this evaluation?
22 A. So I can't give any information. I was not part of
23 those meetings, if they have happened.
24 Q. So you've heard others talk about the fact that it went
25 upstream, but you did not actually participate in or see
[Page 101]
16:38 1 the transmittals of this document up to the minister at
2 that time; correct?
3 A. At that time my job was just to give it to my
4 supervisors, and they will do whatever was in their
5 capacity.
6 Q. But eventually you became minister in 2013; correct?
7 A. You are right.
8 Q. And at that time the file was a little bit larger than
9 it was in 2012, right?
10 A. Can you repeat, please?
11 Q. Yes. The NRD file in 2013 was a little bit larger than
12 it was in May 2012, right?
13 A. You are right, because there are documents that were
14 submitted by NRD after my report.
15 Q. And this report, this evaluation is part of the file as
16 of 2013, when you take over as minister, right?
17 A. This report is an internal document. You see that it is
18 stamped "Confidential". So it was, yes, part of the
19 information we had in the ministry.
20 Q. I'm sorry, I just want to be clear. Are you suggesting
21 that that means something different than what you
22 referred to before as being part of the "file"?
23 A. From my side?
24 Q. They're your references. So I'm just asking: earlier in
25 your testimony, we were using the phrase "in the file".
[Page 102]
16:40 1 You just said something a little bit different about the
2 ministry's records.
3 I'm asking you whether this evaluation, how it was
4 held, was that something other than being part of the
5 "file" that you referred to earlier in your testimony?
6 A. This evaluation, yes, was part of the NRD file that we
7 had at the Department of Mines and at the ministry.
8 Q. But because it was stamped "Confidential", that means
9 that the intention was not to show it to NRD; correct?
10 A. Yes.
11 Q. When you took over as minister, did you observe at that
12 time whether the file contained any explanation of what
13 action, if anything, occurred as a result of your
14 transmittal of this evaluation report?
15 A. Yes, between May, when my report was submitted to my
16 supervisors, and February the following year, 2013,
17 there had been several communications between the
18 ministry and NRD.
19 Q. I'm sorry, with regard to R-040, the document that's up
20 on the screen, your evaluation.
21 A. Yes.
22 Q. When you obtained access to the full file as minister,
23 at that time did you make a determination of whether any
24 action was taken within the ministry with regard to
25 this? Was a meeting held to discuss it? Was an action
[Page 103]
16:42 1 agreed upon or voted on as a result of it?
2 A. If I got your question properly, after I submitted this
3 evaluation report, if there has been any meeting, I was
4 not part of it. But if you're asking if my report maybe
5 contributed to any decision taken by the ministry, yes,
6 I can guess so, because I was asked by my supervisors to
7 write this report: they might have read it and maybe
8 have considered some of the conclusions that I was
9 suggesting.
10 Q. That's fine. I just wanted to be clear as to whether
11 there was any other information you could give me.
12 As I understand it, you weren't any part of any
13 further meeting or discussion, other than to know that
14 you transmitted it once you had the initial comments.
15 And when you became minister, you didn't learn of some
16 meeting and specific action as a result of this
17 evaluation, but you guess somebody did something with
18 it. Is that accurate?
19 A. It's accurate.
20 Q. Now, in R-040 on page 2, if I could ask FTI to scroll
21 down a bit to the "Budget" section, 3.
22 It says here, it summarises very quickly here, that
23 the original budget for equipment and working capital
24 for the 2007 to 2011 time period was $39.5 million; do
25 you see that?
[Page 104]
16:44 1 A. I see it, sir.
2 Q. Then at the next page, 3 of 4, you comment on that by
3 saying that they "only invested 30% of [that] initial
4 budget"; correct?
5 A. I see that as well.
6 Q. Now, did you review the whole November 2010 application
7 before making that summary?
8 A. Yes.
9 Q. If I could ask that C-035 be brought up, and page 8
10 focused on. The "Achievements in Research" section or
11 part, if that could be highlighted and enlarged.
12 What NRD said in its application is, in reviewing
13 its own information about the original request to obtain
14 the four-year licence for the five concessions, that
15 $39.5 million number posed expenditures over a five-year
16 period, 2007 to 2011; correct?
17 A. Yes.
18 Q. So in order to get into a 2011 portion of such a budget,
19 another concession and extension, something else had to
20 go beyond the period of the four-year licence that was
21 being discussed, right?
22 A. Can you repeat your question, please?
23 Q. Yes. To spend five years of a budget on the mining
24 concessions, something beyond the initial four-year
25 concession had to be extended to NRD; correct?
[Page 105]
16:46 1 A. No, that's not what I am reading. They are saying, if
2 I'm reading it properly, that the proposed volume of
3 investment for five years is that amount of $39 million.
4 If I got your question properly.
5 Q. Right. They're saying that the initial proposed
6 investment in working capital and equipment covered
7 a five-year period to spend that money; correct?
8 A. You are right.
9 Q. And they had a four-year exploratory licence; correct?
10 A. You are right.
11 Q. So in order to spend any money in year 5, they were
12 counting on or budgeting in the expectation that they
13 would have some additional licence past the first
14 four years; correct?
15 A. If I recall it properly, they got a contract in 2006,
16 but they got their licence in 2007. And that's why they
17 budgeted for 2007 to 2011.
18 Q. In fact, aren't you aware that the November 2010
19 application was at the end of the four-year term that
20 began in 2006?
21 A. For the contracts, yes. And the licence ended in 2011.
22 Q. So in order to exercise that licence into the next year,
23 they had to extend the contract: they had to have some
24 further right to mine at that concession to get into
25 that fifth year. Correct?
[Page 106]
16:47 1 A. They had to apply for a new licence or a new contract.
2 Q. But the budgeted number that you wanted to hold them to
3 included the expectation of spending money in the fifth
4 year; right?
5 A. That's the budget they proposed. It's not the ministry
6 that proposed this budget.
7 Q. I understand. But you're doing the calculation about
8 what percentage they spent and what they projected as of
9 2010's application. So I'm just focusing on what you
10 did and what you looked at.
11 So you took the $39.5 million and counted it all,
12 and assessed how much they spent as a percentage against
13 it. The
14 A. I assessed what? Can I respond, please?
15 Q. I said -- the question was I hadn't finished it. But
16 what I said in the question was: you assessed how much
17 they had spent as a percentage of that $39.5 million
18 number, right?
19 A. They were supposed to spend this amount within
20 five years, but I made my assessment after six years.
21 So they were given one more year, more than what they
22 expected initially.
23 Q. The information you had in the November 2010 licence
24 talked about what they had spent excuse me, licence
25 application -- sorry.
[Page 107]
16:49 1 The information you had in NRD's November 2010
2 application talked about what they had done through that
3 date in 2010; correct?
4 A. No. The information I used in my report was up to
5 July 2011.
6 Q. Okay. We'll get there in a moment. I have a question
7 about that. But before we leave this line, so I don't
8 bounce around, I just want to point out that in NRD's
9 application about its own four-year initial contract:
10 "The original business plan [it said] included
11 investment in the applied-for mines of Nyakabingo and
12 Gifurwe ..."
13 Do you see that?
14 A. I see that.
15 Q. Did you review the file to determine if that's accurate,
16 that the $39.5 million also included projected spendings
17 on those two mines?
18 A. That's what they say.
19 Q. Did you confirm it? You had the file: you were
20 reviewing it, right?
21 A. I reviewed what I had in hand, and what they are saying
22 is they were also projecting to invest in those mines.
23 Q. I'm just trying to clarify with you, sir: did you
24 confirm that yourself by reviewing the file from 2006?
25 A. Excuse me, can you repeat, please?
[Page 108]
16:50 1 Q. Yes.
2 A. I'm not getting your question properly.
3 Q. Did you confirm this representation that the budget
4 providing for $39.5 million of anticipated expenses,
5 when submitted back in 2006, included projected expenses
6 for the mines Nyakabingo and Gifurwe, in addition to the
7 other NRD concessions?
8 A. You are right.
9 Q. Okay. So what did you do -- when you determined, to
10 report up through the ministry, what percentage of the
11 projected spendings were actually spent through, you
12 say, to July 2011, what did you do to back out of the
13 $39.5 million figure all the projected expenditures for
14 those two mines?
15 A. So if I'm getting it right, they had this budget
16 proposed for five years for in total. If we add these
17 two mines, that would be seven mines. And I was just
18 highlighting that for five mines, they only invested
19 about 30%, and that is a claimed investment. They
20 claimed to have invested about 30% in the five mines
21 they got.
22 Q. When calculating 30%, you took the number that you say
23 you thought they claimed in July 2011 and determined
24 what fraction that was of $39.5 million; correct?
25 A. If the people who are helping us with the technology and
[Page 109]
16:52 1 display of documents can show us, I think this 30% is
2 around the $12 million, $12 million-and-something, that
3 they were saying that they had invested. So $12 million
4 was around 30% of the 35 -- $39 million. That was,
5 I think, where I got that figure from.
6 Q. But in reporting up through the ministry to others that
7 were going to take action on this, what percentage of
8 the initial projected expenses were actually spent, it
9 wasn't fair to hold against them not spending any
10 portion of the budget for two mines that they never
11 obtained, was it?
12 A. Can you repeat, please? I didn't get your question,
13 sorry.
14 Q. I'll try to break it down and make it smaller and
15 quicker, hopefully.
16 You just explained how you took the number that they
17 claimed having spent and that you applied it against the
18 $39.5 million working capital investment projected, and
19 you came up with about 30% as a figure. You agree that
20 you did not go into the budget, that total $39.5 million
21 from 2006, and break out all the budgeted expenses for
22 the two mines that were not part of the NRD concessions
23 ultimately issued; correct? Or, excuse me, the NRD
24 contract that was ultimately issued. Correct?
25 A. So, yes, I didn't have the break down. I just took the
[Page 110]
16:54 1 39 figure, $39 million figure.
2 Q. Well, the breakdown was in the original budget, when
3 they gave you an estimate in 2006, with "you" being the
4 ministry; correct?
5 A. Sorry, in 2006, I -- the documents I used to make my
6 evaluation, in them there's not a breakdown of
7 investment submitted in 2006. So I didn't have access
8 to that document while making my report.
9 Q. Okay. So you couldn't break out the $39.5 million
10 specifically to account only for the projected expenses
11 on the mines that were part of the contract. But
12 wouldn't it have been fair to inform those in the
13 ministry who were going to read this, when you said
14 spending only 30% of the projected figure was not
15 enough, wouldn't it have been fair to tell them that
16 they never actually projected to spend 39.5 on only
17 these five mines?
18 A. Yes, that information would have been helpful.
19 Q. Why did you choose not to pass it on?
20 A. I maybe forgot to explain it.
21 Q. On page 3, further down, within 3.2.1, in two sections,
22 two small-sentence paragraphs above 3.2.2, if I could
23 draw attention to the NRD -- I'm sorry, my mistake.
24 I apologise. First I need to ask to call up R-040, and
25 the "NRD did only" portion of 3.2.1.
[Page 111]
16:57 1 This portion of your evaluation of the November 2010
2 application section on the exploration that had been
3 done uses the language:
4 "NRD did only some significant preliminary
5 exploration work, but failed to realize the objective of
6 delineating the resources and evaluating the reserves."
7 What did that mean, "did only some significant
8 preliminary exploration work"?
9 A. It means that they did surficial and superficial work.
10 They visited the concessions, they identified the type
11 of minerals that can be mined from those concessions,
12 but they didn't conduct estimation of the deposits and
13 the reserves in all the deposits.
14 Q. Do you acknowledge that, based on your review of the
15 November 2010 application, there is reference to
16 "preliminary exploration work" that you're willing to
17 characterise as "significant", but that's only a limited
18 amount?
19 A. Can you repeat, please?
20 Q. Are you willing to agree that on your first evaluation
21 of the November 2010 application, you acknowledged that
22 it did refer to some "significant preliminary
23 exploration work", although you say it wasn't a lot, it
24 wasn't enough, but some of what they were able to point
25 to, you did consider "significant" at that time;
[Page 112]
16:58 1 correct?
2 A. Yes, you're right: "significant ... exploratory work" --
3 "preliminary exploratory work".
4 Q. Then you go on to say, in the next sentence:
5 "Details on this are provided in the assessment by
6 the DDG RNRA/GMD."
7 A. Yes.
8 Q. So first of all, when you say "Details on this", now
9 you're referring to the "preliminary exploration work"
10 that's referred to above: you're saying the details of
11 that work, what it consisted of, are in this other
12 assessment; correct?
13 A. Yes, details on the "significant preliminary exploration
14 work", yes, they are provided in that report.
15 Q. Now, was that report attached to this evaluation when
16 you submitted it?
17 A. I don't remember.
18 Q. Is that other report that's referenced, the analysis
19 that you say Dr Mike did before you?
20 A. This one, when I mean "DDG", that is Deputy Director
21 General, Rwanda Natural Resources Authority, Geology and
22 Mines Department. That is Dr Michael. So here I'm
23 referring to Dr Michael's report.
24 Q. Now, I may have asked it this way before. And I just
25 wanted, having now looked at where you referenced it and
[Page 113]
17:00 1 how you referenced it -- have you attached anywhere to
2 your witness statements that Dr Michael report that
3 preceded yours?
4 A. There's a report that was done by Dr Michael in
5 April 2011, if I am correct. I don't remember if it is
6 attached to my witness statement, but it can be asked to
7 our lawyers and they can share it with you. A report
8 produced by Dr Michael in April 2011, and that's the one
9 I'm referring to.
10 So if it was not attached to my assessment report,
11 it's because the people I was reporting to, they even
12 include Dr Michael. So I didn't have to share to
13 Dr Michael a report that he produced himself.
14 Q. Now that you remember a specific date about Dr Michael's
15 analysis and that it was in writing, can I ask how you
16 have a sharper memory of that now? Is it just based on
17 seeing this, or some other information obtained during
18 the break?
19 A. No, this is as you're asking me questions, my memory
20 is getting refreshed.
21 Q. Now that you recall it better, at least in terms of the
22 date, are you able to recall the answer to another
23 question I asked earlier: based on your review of
24 Dr Michael's prior evaluation, were you able to
25 determine whether it was shared with NRD at any time?
[Page 114]
17:02 1 A. I don't remember. And I was not in a capacity, as
2 a geologist, to be the one to share documents in 2012 to
3 NRD.
4 Q. I understand that's a further comment on a prior
5 question, right. But did you understand my current
6 question is whether what you now recall of Dr Michael's
7 report, did it indicate on its face or otherwise was
8 it indicated to you whether it was shared with NRD?
9 A. I don't remember. I would need to check again.
10 Q. Was it stamped "Confidential" that you recall?
11 A. I don't remember.
12 Q. If I could ask that -- I'm sorry -- yes, page 4, there's
13 a section 4, "Work Plan and budget for 2012 - 2017". It
14 says:
15 "NRD intends to invest $ 9,960,000 for the 2012 to
16 2017 period."
17 And then it goes on to talk about some other aspects
18 of that.
19 Please say again: where did you get that number?
20 A. If you can go to the main source of information I used,
21 you will find that there was a report produced by NRD
22 for their investment plan for the years 2012 to 2017.
23 So I got the information from that report.
24 Q. Okay. I can't go there, so I'm going to ask this
25 question: is that report attached to your witness
[Page 115]
17:04 1 statement anywhere that you recall?
2 A. While preparing this hearing, I tried to search for that
3 report. Unfortunately I didn't find it.
4 Q. And you were looking in the materials attached to your
5 witness statements; correct?
6 A. I looked at the materials attached to my witness
7 statement, and unfortunately I didn't find it.
8 Q. And you looked at all the documents produced by
9 Respondent for this hearing, even if they weren't
10 attached to your witness statements, to look for it;
11 correct?
12 A. Unfortunately, yes. I tried to look for that report,
13 but I was not successful in getting a copy of it.
14 Q. And you looked at the Claimants' submitted exhibits for
15 this hearing also to search for that report, to see if
16 it was there; correct?
17 A. No, I didn't have time to go through all the documents
18 sent by the Claimants.
19 Q. How about the exhibit numbers for the hearing: did you
20 at least go through those, looking for this report?
21 A. I went through the documents that were attached to my
22 witness statement, and I couldn't, unfortunately.
23 Q. Yes. No, we asked that. I'm just trying to get clarity
24 on one last piece.
25 You said you didn't have time to review all the
[Page 116]
17:06 1 documents produced by Claimants in the case. I just
2 want to be clear: did you have time and did you review
3 the documents that Claimants put forward as exhibits in
4 this case, this hearing, so the C-[some number]
5 documents, did you review that looking for this report?
6 A. At least -- yes, I reviewed all the documents that I had
7 access to and I was not able to find that specific
8 report I'm referring to.
9 Q. You'll agree that that number and that time period is
10 not referenced in the November 2010 NRD application,
11 right?
12 A. I would need to check. But this number I'm referring to
13 is 2012 to 2017.
14 Q. Right.
15 A. And trying to look at it, I remember that I got it from
16 that document I'm referring to on paragraph 0 of this
17 report.
18 Q. Okay. If I could ask that C-035 be brought up.
19 MR IMENA: Excuse me, can I just be given one second to
20 switch on the light of the room where I'm sitting?
21 MR COWLEY: Of course.
22 MR IMENA: Okay, thank you.
23 MR COWLEY: Now, you said you would need to check the
24 document. I'm going to try to assist, and then if
25 I can't, I'll step out of the way, and you can tell me
[Page 117]
17:07 1 what you think would work for your checking.
2 But the best way I know to find things in this
3 document is to look at the index first. So if I could
4 ask FTI to go to pages, I think, 2 and 3. So there's
5 the index, and I guess it goes on to hold up one
6 second. I'll get ahead of you and see where it ends.
7 It goes through 2, 3 and 4. So we'll turn to 4 when we
8 have a second.
9 But in terms of the future projections, I would draw
10 your attention to start at the "Proposed Activity
11 Plan[s]" and "Proposed Business Plan" following it, so 6
12 and 7. Do you see there that all of the time periods
13 covered by the various projections and details, all of
14 the time periods are different than the 2012 to 2017
15 time period referenced in your evaluation? It's one
16 year earlier, the five-year projection; correct?
17 A. I'm sorry, I didn't get your question properly.
18 Q. I'm sorry. Let me just
19 If you look back up at the page 3, do you see
20 there's "Proposed Activity Plan[s]" near the bottom of
21 section 6? 6.3, 6.4, 6.5, 6.6. That seems to be
22 a discussion in summary of the various aspects of the
23 activity plans for 2011 to 2015. Do you see that?
24 A. Yes, I see that.
25 Q. Then if you go to section 7, the "Proposed Business
[Page 118]
17:09 1 Plan", how much money is going to be spent on those
2 activities, you have a similar individual-year breakout
3 and then the summaries are below it, [and] the
4 individual year breakouts are 2011 to 2015. Do you see
5 that?
6 A. I see that.
7 Q. Now, [if] you think you need to look at any of those
8 individual pages, either in the individual years or in
9 the subsequent pages to confirm, if you think you need
10 to do that, tell me. But I would like to ask the
11 question first, to see if you even need to.
12 Do you agree that the November 2010 application
13 could not provide a figure such as 9.96, as projected
14 over 2012 to 2017, because it simply didn't project
15 anything over that specific time period?
16 A. Sorry, I didn't get properly your question that you want
17 me to confirm. First, I don't remember the figures on
18 each of those years. And if you can agree with me, this
19 plan was submitted, I think, ten years/eleven years ago,
20 so I can't remember all the figures in my mind. So can
21 you just tell me what you would like me to confirm, and
22 I can confirm it or not confirm it.
23 Q. So all I'm asking you is: do you agree that whatever the
24 figures are that are reported there, they're not
25 a figure projecting over the time period 2012 to 2017?
[Page 119]
17:11 1 A. Yes.
2 Q. That all of the figures here purport to project over
3 an earlier time period?
4 A. It's 2011 to 2015, you are right.
5 Q. Okay. So do you agree, going back to R-040, your number
6 in the projected time period which it covers, that
7 number in that projected time period didn't come from
8 the November 2010 application itself, right?
9 A. The number I'm referring to comes from a report of
10 July 2011; it's not coming from this report. But
11 unfortunately, I tried to find that report: I couldn't.
12 Q. Fair enough. I'm not asking you to repeat that. I'm
13 just trying to address the fact that you said earlier
14 you would need to check the November 2010 application to
15 know if it was also in there. That's the reason I did
16 this. I wasn't asking to repeat the other statements
17 you made.
18 If I could ask now that C-207 be brought up, and
19 page 2. So do you see that this is -- I'll make
20 a representation to you that there's a number of emails
21 and attachments to emails all together collected as one
22 electronic document. So what I'm looking at is just one
23 example. But there's an exchange by email of what's
24 behind it as a document.
25 Do you see the "Article4: Capital investment" in
[Page 120]
17:13 1 this document?
2 A. I see it.
3 Q. It says:
4 "The company plan to invest 9.960.000USD in period
5 of 5 years."
6 Do you see that?
7 A. I see that.
8 Q. And that number is the same number as in your R-040;
9 correct?
10 A. Can we go back to that? But yes, it is
11 9 million-something. If it is 9.96, I'm not -- I don't
12 remember, yes. But I talked about 9-point-something
13 million in
14 Q. If you do it quickly, that's fine. Could I ask that
15 [R]-40 be -- don't put this down, just make it one
16 document on the left side of the page, bring up [R]-40
17 on the right. The
18 A. Yes, I see that.
19 Q. Right. So --
20 A. 9.96.
21 Q. Okay.
22 Now, in C-207, if I could ask we go to page 93,
23 I think there's another example there later.
24 Now, in this later email -- and I'll show you, if
25 you would like -- before you answer the question, I can
[Page 121]
17:14 1 scroll up and show you that it's a similar document, in
2 terms of what it is that we're looking at, and that it's
3 also similarly attached to an email as the opening
4 document in this exhibit that I showed you.
5 But if you look at specifically page 93 now of this
6 draft contract, there's, under "Article 4", a little bit
7 more updated language. And do you see there it uses the
8 same phrase:
9 "The company plan to invest 9,960,000 USD in
10 a period of 5 years ..."
11 And gives the specific "2012 - 2017". And that's
12 essentially what aligns with, in a full reference, your
13 evaluation; correct?
14 A. $9.96 million: it's the same, it's the same number.
15 Q. And over the same reference time period, all in one
16 sentence?
17 A. Yes, "2012 - 2017", correct.
18 Q. I'll suggest to you: of all the exhibits that the
19 parties have put in for this hearing, this is the only
20 document -- C-207 contained the only documents with that
21 projected number over that projected time period
22 preceding your evaluation of the application for the
23 renewal of NRD's exploration in mining licences, if in
24 fact the date that that was prepared was May 2012.
25 Was it your
[Page 122]
17:16 1 A. I didn't get the question properly.
2 Q. Okay. Looking at R-040 again.
3 A. Yes.
4 Q. And I'm asking FTI to bring up the first page of R-040.
5 Do you see the date is May 8th 2012?
6 A. You are right.
7 Q. If that is the accurate date of this document
8 A. Yes.
9 Q. -- I will suggest to you that the only document in the
10 record provided for this hearing that uses the number
11 and the time period that's included in your evaluation
12 that we've seen is what we just looked at: C-207, the
13 draft contracts that are part of that email chain.
14 My question to you is: isn't it true that you know
15 that? That after reviewing all of the exhibits and
16 materials, you found there isn't that phrase and that
17 number for that time period in the actual record, and
18 that's what caused you to reference some other document
19 not in the record as your source?
20 A. No.
21 Q. Isn't it true that you also know that the next time in
22 the record that amount over that time period is included
23 as a phrase is part of the January 2013 amended
24 application that NRD submitted to the ministry? Are you
25 aware of that?
[Page 123]
17:18 1 A. I am aware.
2 Q. And if that were the source of the number and phrase
3 about the period it covered, that would mean your
4 evaluation wasn't actually prepared in May 2012; it
5 would have to be sometime after January 2013 that it was
6 created. Isn't that true?
7 A. You are not saying the truth. Can I explain?
8 Q. I'm just asking -- my question to you, sir, is: if the
9 January 2013 document was the source, that would mean
10 your evaluation would have to be created after it; isn't
11 that
12 A. No.
13 MR HILL: Mr Cowley has been given the metadata for this
14 document. It's one of the documents he asked for the
15 metadata for, and he got it. He doesn't have a basis
16 for the questions he's just put. It's inconsistent with
17 the data he has now been provided with.
18 MR COWLEY: Counsel for Rwanda is aware, presumably, having
19 litigated in the current age, where metadata is
20 a constant source of discussion, that documents could be
21 amended, and metadata is no different. Metadata is
22 computerised documents, computerised data. To produce
23 metadata does not come with a guarantee that nothing
24 within that metadata itself could have been changed. So
25 counsel is making a factual representation that he's
[Page 124]
17:20 1 simply not capable of making.
2 I do have the metadata, I know what it says, and I'm
3 not pointing to it to suggest anything. But suggesting
4 that it says something and means something I think is
5 inappropriate to this witness.
6 MR IMENA: Sorry, am I allowed to give an explanation?
7 THE PRESIDENT: Yes, you are.
8 MR COWLEY: If you answer my last question, yes.
9 MR IMENA: I think the purpose of this hearing is to find
10 the truth. So can you please someone from your -- send
11 someone from your side, he gets to my email, I will give
12 him full access to my email, and he will find out
13 himself that that email was shared on May 8th 2012. So
14 you can send whoever he wants: he will get or she will
15 get access to my email for the purpose of finding out
16 the truth. And I would be happy to do that.
17 MR COWLEY: Mr Imena, if I could stick with the topic. And
18 I'm not trying to do this in an antagonistic or
19 argumentative way, but you've raised now a topic that
20 I'd like to question you about specifically.
21 Did you participate in the production of documents
22 on behalf of the Respondent in this case?
23 A. Yes, I participated: I made a witness statement.
24 Q. A little bit different. Are you aware that beyond
25 producing your own statement and attaching things to it,
[Page 125]
17:21 1 that there was another part of this process in which
2 both sides ask each other to go and look for documents
3 and voluntarily give them to each other?
4 A. Yes, I tried also to share with our lawyers the maximum
5 of information I had. And I'm telling you, sir, that
6 I would be pleased to share with you the access to my
7 computer and to my email, so that you can check for you.
8 Q. Mr Imena, I just have some just brief specific questions
9 about the process, just so it's clear what happened
10 already.
11 You were out, you were no longer minister, you were
12 no longer working --
13 A. Alright. I'm no longer minister since October 2016.
14 Q. The question I'm trying to ask, sir, is: you were no
15 longer within MINIRENA in any capacity at the time that
16 the parties asked each other to produce documents; do
17 you recall that?
18 A. Yes, I recall.
19 Q. Okay. Nevertheless, you participated by making your
20 personal information available; is that correct?
21 A. I tried my best, and I'm still willing to do so.
22 Q. Sir, I'm just asking questions, because I don't -- it's
23 not that I purport to know these questions. These are
24 legitimately questions I don't know the answer to. I'm
25 not suggesting anything by them, just asking you for
[Page 126]
17:23 1 information.
2 The reference to email, I just want to be clear on
3 and specific. You had, while you were with MINIRENA,
4 a government, a ministry account; correct?
5 A. So if I'm allowed just to explain it quickly, I have my
6 personal email that I run for maybe the last 20 years.
7 I was using it until I was appointed minister of state
8 in February 2016. Now, before February 2016, I was
9 primarily using my Yahoo account, and I still have
10 access to that account.
11 Now, the dates
12 Q. May I just ask you to focus on
13 A. Yes, please.
14 Q. I think you may have made a mistake in the date. And
15 rather than have you go all the way on and ask you
16 again, I just want to point out to you: you said you
17 became Minister of Mining in February 2016. Is that
18 what you meant, or did you mean to say
19 A. Oh, no, no. That was a mistake in explaining. I became
20 minister in February 2013.
21 Q. Thank you.
22 A. Yes.
23 Q. So prior to February 2013, when doing work for the
24 ministry, you used your personal Yahoo email account and
25 nothing else; correct?
[Page 127]
17:24 1 A. I was using that, yes, for the ministry work. I was
2 using that email.
3 Q. And when you were appointed minister, you began using
4 a ministry address email account; is that correct?
5 A. Yes, I began using a specific Government of Rwanda
6 address. I no longer have access to that one, but
7 I have access to my Yahoo address.
8 Q. Right. I'm getting there, sir. I'm just trying to make
9 it clear.
10 So is it also true that during the period while you
11 were minister, some communications where you were
12 conducting government business, you use the Yahoo email
13 account address, either alone or also with the ministry
14 email address, both on one document? Did that happen
15 from time to time?
16 A. Can you repeat your questions -- your question, please?
17 Q. Yes. Even after 2013 and becoming appointed as
18 minister, some of your communications in that capacity
19 still included your Yahoo email account address, whether
20 alone or with your government address; some of those
21 emails wound up in your Yahoo account too. Correct?
22 A. Yes, before creating my -- because I'm not the one who
23 created it. Before the IT people created my government
24 email, I used my Yahoo, and then I think I also created
25 a Gmail account. So there had been a transition. And
[Page 128]
17:26 1 there were people who didn't know my new government
2 account, so those continued to contact me through the
3 Yahoo for a short period of time. And then I informed
4 them gradually that now I have a new, official account,
5 and that's the one I'm using.
6 Q. Sir, was the Gmail account also used from time to time
7 for your government work?
8 A. I don't remember.
9 Q. Okay.
10 Now, when it came time for the government to produce
11 documents, were the Yahoo email account and Gmail
12 account fully searched for all documents that someone
13 was looking for to be produced in this case?
14 A. Yes, they were searched.
15 Q. Who did that? Did you do that yourself, or did someone
16 else do it?
17 A. I did the search, and that's where I found this May 2012
18 report. So I sent the report that our lawyer is
19 referring to you to our team of lawyers from my Yahoo
20 account. And now, because you are questioning its
21 production date, I'm inviting you to get access to my
22 Yahoo account, so that you check it yourself and your
23 team.
24 Q. Sir, I'm just asking some questions. If we could stick
25 with the questions. I'm not trying to make this
[Page 129]
17:28 1 a belaboured exercise. I just want to be clear as to
2 what happened.
3 At the time those email accounts were searched by
4 you looking for documents, did you come up with the
5 search terms yourself or did someone provide them to
6 you? Were you following instructions and going through
7 a list of things that were supposed to be searching for,
8 or did you just look on your own for what you thought
9 was relevant?
10 A. So I just put on "NRD" as a keyword for searching, and
11 then the tools of the internet helped me search in my
12 email account.
13 Q. Okay. And last question on this: in addition to the
14 email accounts that were searched as you just described,
15 did you also have paper documents, files at home,
16 perhaps electronic storage at home, that contained other
17 documents that went beyond just the email accounts, that
18 contained some of your work while you were with MINIRENA
19 on them?
20 A. I also searched my computer and found some of the
21 documents that I had, and I shared everything that I had
22 at that moment with our team of lawyers.
23 Q. Alright. I very much appreciate the explanation.
24 Now I would like to go back to R-040 and then ask
25 the specific questions about this, given the context
[Page 130]
17:29 1 that you've now described.
2 R-040, if I understood you correctly -- and that's
3 my question -- do I have it correct that you said you
4 found R-040 in your files in one of your email accounts
5 only?
6 A. So at least what I remember is that I found it from my
7 emails that it shows that I sent it to Francis Kayumba.
8 Q. So you found it in searching your personal email
9 accounts that you just described, right?
10 A. Okay, that's where one of the areas. It's only in my
11 email account and in my computer.
12 Q. So the document itself was also stored on your computer,
13 and you found that too; is that what you're saying?
14 A. I'm the one who created it, sir. I'm the one who wrote
15 this. So (overspeaking)
16 Q. I'm just asking
17 A. my computer.
18 Q. I'm just trying to ask questions so I understand what
19 you're saying.
20 You found it in two places: you found it on the
21 Yahoo or Gmail system stored with emails
22 A. Yes.
23 Q. and you found it as a document on your own computer;
24 correct?
25 A. You are correct.
[Page 131]
17:30 1 Q. Okay. Now, when you produced it in this case, was it
2 your understanding that it wasn't found anywhere else by
3 the Respondent, in anybody else's email or anybody
4 else's computer, so it had to be produced from the
5 version you found on your own?
6 A. So I produced it and copied it to several of my
7 colleagues, the ones that I mentioned. Now, the
8 document you are showing me might come from either the
9 one I sent to our lawyers or the one my colleagues might
10 have shared to our team of lawyers.
11 Q. I'm not asking about what you did with it when you found
12 it. I just want to be clear about what you understood.
13 Did you learn that when you found it on your
14 computer and in your email account, that your copy of it
15 was the only copy found and produced in this case, so
16 you had to turn it over so we could get it: it wasn't
17 found in Respondent's files otherwise?
18 A. So if I can explain it again, if I'm allowed.
19 This document was produced in 2012, shared to my
20 colleagues. So now the one you are showing me might
21 either come from the one I sent to our team of lawyers
22 or from my colleagues, who might have shared it to our
23 team of lawyers.
24 But if you want to access the one I produced, you
25 are please to do so.
[Page 132]
17:32 1 Q. No, I think I understand now. It's fair to say what
2 your testimony is: you don't know whether R-040 is the
3 version you found on your system or if it was found by
4 someone else; you wouldn't have any way to know that.
5 That's what you're saying; correct?
6 A. This one you are highlighting to me was produced by me.
7 This is correct. And the information I'm reading is
8 correct to what I found in my email and in my computer
9 system. So whatever is written here is correct with me.
10 Q. Okay. And looking back at the time, May 2012, when you
11 were asked to do this project and submitted, as you've
12 already explained, what you did, based on the practices
13 of you and your colleagues within MINIRENA, if it was
14 circulated to others at that time, it would remain in
15 the NRD file and accessible in Respondent's records at
16 the time of this case; correct?
17 A. So let me explain again.
18 When you will check the email I shared to my
19 colleagues, I think none of them was using a government
20 email. Because here it's not like in the US. We are
21 progressing gradually with IT. In 2012, most of the
22 people in the ministry and in the Natural Resources
23 Authority were using their Yahoo or Hotmail or any other
24 public email system. So, yes, if you check those emails
25 to which I shared it, you will find it.
[Page 133]
17:34 1 But I didn't properly get your question.
2 Q. Okay. And I'm not hiding anything from you in my
3 question: I don't have an email. I don't have it. So
4 I would ask you and direct you to it if I did.
5 So to be clear, you remember saying that this was
6 also sent on after you sent it to your supervisor,
7 and also Dr Mike, it was sent on eventually to the
8 minister; do you recall that testimony?
9 A. Yes, Alison George shared it to the Minister of
10 Natural Resources, Mr Kamanzi.
11 Q. Now, the minister at that time, just like you later, had
12 a government email account to use as a formal email
13 account address; correct?
14 A. In 2012, had he a government email? I don't remember.
15 But we can check for that.
16 Q. Okay. Last attempt with this question.
17 Whoever received it up the chain from you, it was
18 your expectation, based on the practices and policies at
19 the time, that it would be retained within the NRD file,
20 as you've described it in your testimony, available to
21 anybody else in MINIRENA to look at in the future, if
22 others up the chain that you've described received it
23 from you; correct?
24 A. I don't know what you are calling the "NRD file". The
25 NRD file that I know is the one we're having for this
[Page 134]
17:36 1 arbitration. But what I can tell you is that I shared
2 it to several people, and they might have shared it to
3 other people.
4 Q. If I could ask FTI, on document C-207 -- I guess you
5 have to bring that back up. Yes, I'm sorry, it's the
6 document on the right. If you could go to page 89 of 98
7 in the PDF pages, and if you can enlarge at the top.
8 So just to orient you, I don't want to hide anything
9 from you, but before we move up, I want you to see that
10 this is an email exchange between Mr Marshall
11 originally, and then there's a response on top of that
12 email from Mr Bidega. This is now the highlighted top
13 portion, the response.
14 Do you understand that, or do you want to reduce it
15 and see the chain again? You see that there's two
16 emails on top of each other?
17 A. I see.
18 Q. Alright. So Mr Marshall send back an email and gets
19 this response: they're attached together?
20 A. Yes, I see.
21 Q. Okay. Now, if I could highlight again at the top:
22 Mr Bidega's response has a copy, has a "Cc".
23 A. Yes.
24 Q. Up in the address lines, please.
25 A. Yes.
[Page 135]
17:37 1 Q. Okay. Can you please pronounce are you familiar with
2 the name in the "Cc" line?
3 A. Yes, I'm familiar with the name. It's pronounced
4 this is email of Mr Clement Habiyambere.
5 Q. And I'm going to say "Mr Clement" to refer to him.
6 A. Clement, yes.
7 Q. I don't mean to be disrespectful, but I'm going to get
8 it wrong either way, I think.
9 So Mr Clement was an employee of MINIRENA as of
10 December 13th 2011, correct?
11 A. No. Mr Clement was an employee of Natural Resources
12 Authority, not ministry MINIRENA.
13 Q. And just very briefly, the Natural Resources Authority,
14 was that department or authority involved in the mining
15 industry in any way?
16 A. Yes, I will just be quick. There was the ministry
17 itself: it was called Ministry of Natural Resources,
18 MINIRENA. And there was an agency called Rwanda Natural
19 Resources Authority, and in that agency there were
20 several departments, including a department in charge of
21 mining.
22 So Clement was an employee of the agency, Rwanda
23 Natural Resources Authority. But before joining the
24 agency, he used to work for the OGMR, which was the
25 authority in charge of mining.
[Page 136]
17:39 1 Q. And when was that? When did he work there?
2 A. OGMR was he joined OGMR, I think, shortly after its
3 creation, or even he was involved in the task team that
4 was there when it was created.
5 Q. And I apologise, I don't know that date. So just,
6 please: when was he an employee of OGMR?
7 A. Let's say at least before I joined it. So it is
8 anything before 2008. So he was there before me.
9 Q. And when did he move over to the Natural Resources
10 Authority?
11 A. When OGMR was restructured and changed into the Geology
12 and Mines Department of Rwanda Natural Resources
13 Authority. That is in 2011.
14 Q. As of December 13th 2011, was he with OGMR or was he
15 with the Natural Resources Authority agency? Or are you
16 saying you don't know: it could be one or the other?
17 A. December 2011, we were shifting from OGMR into RNRA,
18 Natural Resources Authority, GMD. So I think at that
19 time he was already at Geology and Mines Department.
20 Q. Okay. And was he a lawyer?
21 A. Yes, he was. At least at OGMR he was serving as the
22 legal affairs advisor, legal affairs officer; I don't
23 remember properly the position.
24 Q. And when he moved over to Natural Resources Authority,
25 is it your understanding that he continued to work in
[Page 137]
17:41 1 a capacity that was involved in some way in mining
2 licences, mining contracts?
3 A. I would say that he was what I remember: he was part
4 of a pool of lawyers or people trained in legal affairs.
5 And because he was one of the few with mining
6 experience, he was most of the time involved in mining
7 legal issues.
8 Q. It's fair to say that Mr Bidega knew Mr Clement
9 A. Yes. I think they even had been together in a training
10 in France; I think, if I recall it properly. So they
11 knew each other.
12 Q. So in seeing that Mr Bidega copied Mr Clement here,
13 isn't it fair to say that you recognise Mr Bidega was
14 not trying to hide this communication from anyone within
15 either Natural Resources Authority or OGMR?
16 A. I don't agree.
17 Q. Did Mr Clement report to you that he received this
18 email?
19 A. He was not under my supervision and he never talked to
20 me about this.
21 Q. Did he report to -- without talking to you, did you
22 learn that he reported to anyone else in Natural
23 Resources Authority about this email?
24 A. I don't have -- I never got that information.
25 Q. And you're aware, are you not, sir, that no one reached
[Page 138]
17:43 1 out to Mr Bidega after he copied Mr Clement on this
2 email and told him that this email was somehow
3 inappropriate; correct?
4 A. I don't remember. I don't remember.
5 Q. You are aware, sir, that no one from the ministry
6 reached out to Mr Marshall or NRD and said this was
7 an inappropriate communication between him and
8 Mr Bidega; correct?
9 A. I don't remember.
10 Q. And that goes for the other groups as well: you never
11 heard of anyone from OGMR or anyone from Natural
12 Resources Authority reaching out to NRD or Mr Marshall
13 to complain that this was somehow an inappropriate
14 communication; correct?
15 A. I don't remember.
16 Q. If I could ask that the first witness statement be
17 brought back up and paragraph 12 be focused on. If we
18 look within paragraph 12, the third sentence, do you see
19 there it's saying that:
20 "In fact, its November 2010 Application ..."
21 You understand that you're referring here to NRD,
22 right?
23 A. Yes. Yes.
24 Q. "... was only an application for further five-year
25 licences with some variations from the original ones and
[Page 139]
17:45 1 not an application for a long-term licence."
2 Do you see that?
3 A. I see. I see that.
4 Q. I'm sorry, one second. I lost the notation of the next
5 exhibit. I'll pick that up. (Pause)
6 May I ask that document R-118 be pulled up, please.
7 Mr Imena
8 A. Yes.
9 Q. -- if you recall this document, it won't require us to
10 toggle back and forth with the other. I will be happy
11 to, if you don't recall this document and need
12 orientation for my questions. But for purposes of my
13 questions right now, I'd like to start by finding that
14 answer out.
15 Do you recognise this document? Do you know what
16 it is?
17 A. "August 12, 2014". I don't remember exactly this
18 document.
19 Q. I will bring it up on my own screen for a moment so
20 I can see it in a size that I can read.
21 So perhaps it's best if on one side of the screen,
22 this document -- perhaps the right side, because I think
23 it's later in time, and if you could bring back up R-040
24 and put it on the left side.
25 Now, R-040 is a document we just went over various
[Page 140]
17:47 1 sections of, and it's a four-page document. If I could
2 draw your attention to the last page of R-118, you'll
3 see that it's a seven-page document.
4 Sir, do you recall that in August 2014 someone was
5 asked to undertake an update assessment of NRD, starting
6 with or based upon your evaluation that's been marked as
7 R-040?
8 A. Can are you asking me if someone made an evaluation
9 in August 2014 about NRD's fine?
10 Q. I'm asking whether someone was asked to update or work
11 with your evaluation -- that's R-040 -- and add more
12 information.
13 A. Sorry, I'm not getting your question properly.
14 Q. Okay, never mind. I take it if you recalled such
15 an event or project, it wouldn't be such a hard
16 question. So I would ask then just to help me by going
17 through specific sections.
18 For the purposes of the last question, however, from
19 your witness statement, there's one portion I'd like to
20 draw your attention to first that's right in the middle.
21 Because I'm getting the sense that you have a fresh
22 memory of this, if you've seen it before -- I'm happy to
23 let you look through page by page. But I'm going to
24 suggest to you that to answer this question or
25 questions, I'm not going to require you to say something
[Page 141]
17:49 1 about what's in the other content.
2 Would you prefer to see the other pages and what's
3 on them before you answer any questions about it?
4 A. Yes, there's this document, R-040, I think it's the one
5 that I produced. Now there's another one exhibited.
6 Q. Yes.
7 A. So I would like to read it.
8 THE PRESIDENT: Well, in that case I suggest we have
9 a 15-minute break now and resume at 6.05 English time.
10 MR COWLEY: Thank you.
11 MR IMENA: Thank you.
12 (5.50 pm)
13 (A short break)
14 (6.07 pm)
15 MR COWLEY: Before we return to that document
16 Mr President, I'm sorry, may I continue?
17 Before we return to that document, sir, I realised
18 during the break that I left open a couple of questions
19 that I thought I had answers to, but I don't.
20 Earlier I asked you some questions about a number of
21 large-scale mining concession holders that were issued
22 before you left, and then you talked about the names
23 that you gave us. And what I've left open
24 unintentionally was: other than large-scale
25 (Pause to resolve a technical problem)
[Page 142]
18:08 1 Mr Imena, other than the large-scale mining
2 concession holders that you identified having been
3 issued prior to your leaving ... (Pause) how many other
4 concessions were awarded to applicants prior to your
5 leaving MINIRENA?
6 A. I don't remember the number, the exact number.
7 Q. Do you recall an approximate number of how many other
8 concession holders had issued
9 A. Licences. Mining licences and exploration licences.
10 Q. I'm asking specifically about concession holders. Other
11 than large-scale mining concession holders already
12 identified, not to be repeated, were there any other
13 concessions awarded prior to your leaving the position
14 as minister?
15 A. If concession is the right to mine for 30 years, zero
16 concession licence was granted prior to me leaving the
17 ministry.
18 Q. How many other long-term licences were granted -- let me
19 stop the question and restart it.
20 How many long-term licences were granted to
21 applicants, excluding the large-scale mining concession
22 holders already identified, prior to your leaving?
23 A. I don't remember the number, as I said.
24 Q. Is it more than ten?
25 A. I don't remember.
[Page 143]
18:10 1 Q. And the other question I started to ask, but I didn't
2 get a response and I have to return to and I didn't
3 get a response because I diverted. So to return to what
4 we were talking about with regard to the applications or
5 applicants for concessions while you were with the
6 ministry.
7 Was there ever a document or a computer program,
8 a computer system, spreadsheet, that listed all
9 applicants for concessions and tracked where each was in
10 the process, showed what was done, what the ultimate
11 decisions were or what open questions there were in
12 their application process?
13 A. I don't remember.
14 Q. So you don't remember having such a tool available to
15 you at any time, to see them all and where they stood?
16 A. You are asking for which period, please?
17 Q. Prior to your leaving the ministry -- prior to you
18 leaving MINIRENA, excuse me.
19 A. Yes, me prior to leaving MINIRENA, we had a cadastre
20 system. It was an online system. So that was the
21 system we had at that time.
22 Q. Say it again, please? Sorry.
23 A. A mining cadastre system.
24 Q. And did that system allow you to pull up on your
25 computer screen all of the applicants, to see and
[Page 144]
18:11 1 compare as to where they stood in the process of their
2 applications?
3 A. In the data fed into that system, you can have the list
4 of licences that were issued, those that have expired.
5 Q. But I'm asking specifically about the summary of all the
6 names in one place, that you could see them together and
7 where they stood. So, in other words, could you call up
8 on a screen and see: this application was granted, this
9 application was denied, this application is in a process
10 where we're waiting for the following thing; all of the
11 applications in one place?
12 A. I was not the one running that computer system, but we
13 had the mining cadastre system which was in charge of
14 that.
15 Q. Thank you. Now if we could go back and pull up R-118.
16 MR MCCARTHY: Sorry to intervene. This is Mr McCarthy on
17 behalf of the Respondent. We've lost Mr Hill. So
18 I wonder if we could have a little break until we get
19 him back.
20 THE PRESIDENT: That seems reasonable. We'll have a short
21 break.
22 MR WATKINS: Mr President, would you like us to put everyone
23 back into their breakout rooms?
24 THE PRESIDENT: Not particularly. We'll just sit peacefully
25 and wait for Mr Hill to return.
[Page 145]
18:13 1 MR WATKINS: Understood.
2 (6.13 pm)
3 (Pause)
4 (6.15 pm)
5 MR HILL: Mr President, I apologise for that. We have
6 a problem with our system in chambers. But we are back
7 on through a mobile phone connection, which I think will
8 be sufficient for us to listen to the cross-examination
9 of Mr Imena.
10 THE PRESIDENT: Very well. Thank you very much, Mr Hill.
11 We'll carry on then, please.
12 MR HILL: Thank you.
13 MR COWLEY: To the FTI system operator, if we could close
14 R-040 now. Because when we left, the witness said he
15 needed to review this document. So I'd like to open it
16 two pages at a time, so he can see it.
17 Mr Imena, R-118 is a seven-page document, as
18 I mentioned before. I'm going to give you the
19 opportunity you asked for: you said you needed to read
20 it to understand whether it's something you're familiar
21 with, so please do. And when you need to go on to
22 page 3, please say so.
23 I have specific questions about specific entries.
24 So I will give you an opportunity to read the material
25 I'm questioning you about.
[Page 146]
18:16 1 A. Yes.
2 Q. Please keep that in mind.
3 A. You can go to page 3. (Pause)
4 Yes, page 4, please. (Pause)
5 Page 5, please. Yes, and 6. (Pause)
6 Yes, please, 7. (Pause)
7 Yes? Sorry, I can't hear you.
8 Q. My apologies.
9 Having read the document, are you now able to say
10 you recall the creation of this document and its
11 purposes?
12 A. Can you repeat your question, please?
13 Q. When was the document marked R-118 created?
14 A. Looking at the first page, I think it is in 2014.
15 Q. It says on the first page, if we bring it up,
16 "August 12, 2014". Do you recall it being created at
17 that time?
18 A. I don't remember.
19 Q. Why was it created?
20 A. Why was this document created?
21 Q. Yes.
22 A. According to the title, it's assessment of the
23 performance of NRD.
24 Q. That is the title. But do you recall why this
25 assessment of its performance was done in August 2014?
[Page 147]
18:21 1 A. So I am not seeing the author, the name of the one who
2 wrote the document. I don't see the one he's addressing
3 to. So I can't recall.
4 Q. Have you seen this document before today?
5 A. I don't remember.
6 Q. You do recall the circumstances of NRD's operation of
7 its mining concessions in August 2014, don't you?
8 A. What I remember is so, after reading it, I agree with
9 the recommendations and the findings given in the
10 document. So the document might have been produced
11 maybe by someone at the ministry or at Rwanda Natural
12 Resources Authority.
13 Q. Do you recall the circumstances of NRD's operations at
14 the mining concessions in August 2014, where things
15 stood?
16 A. August 2014, I recall that around that time we have had
17 the 2014 law; and after the 2014 law, NRD was asked to
18 re-apply for its licences. So that was the context in
19 2014. That is what I recall.
20 Q. Was NRD being provided tags so that mining operations
21 could be conducted and it could lawfully sell the
22 resulting minerals as of August 2014?
23 A. There was there's a point in time when we banned NRD
24 to continue receiving tags. The date is explained in my
25 witness statement. I don't remember the exact date.
[Page 148]
18:23 1 But that happened.
2 Q. During the period when tags were not provided to NRD to
3 operate mines and sell minerals, would there have been
4 any reason to evaluate its performance as a mining
5 operator?
6 A. We had very good reason to ban NRD to continue [to]
7 access tags.
8 Q. That's not my question, sir. I just want to focus you
9 on the question.
10 During the period when the ban was in place, was
11 there any reason that you can recall why an assessment
12 of its performance would be begun at that point in time?
13 A. During the period when we banned NRD to access tags,
14 they didn't have a licence. So we had good reasons to
15 continue making assessment of their performance.
16 Q. I'll return to the chronology briefly, but I want to
17 focus first on this document.
18 Although you say that since you agree with certain
19 things, it could be something from the MINIRENA -- is it
20 accurate for me to say that you recognise that it was
21 a document that might have been worked on by someone in
22 MINIRENA, but you don't actually recall someone working
23 on this document? Is that your testimony?
24 A. This document is not signed. I don't see the name of
25 it, the one who wrote it. So I can't give you more
[Page 149]
18:25 1 information than that.
2 Q. Page 6, the various sections that are broken up here in
3 the assessment of the performance, then lead to
4 section 4, "Application for Long Term License". Do you
5 see that?
6 A. I see that.
7 Q. And in this assessment it states:
8 "On 29th November 2010 NRD Rwanda Ltd sent a letter
9 of request for an extension of Mining and exploration
10 license (Special licence) for ..."
11 And then it names the five concessions:
12 "... On 2nd August 2011, The Ministry of Natural
13 Resources extended operations for a period of six ...
14 months to allow for negotiations. On 2nd February 2012,
15 and on 13th September 2012, the Licence was extended on
16 the two occasions ..."
17 And it then goes on to describe the same statement
18 of the projected expense, the same period of time that's
19 in your earlier assessment. Do you see all that?
20 A. I see it.
21 Q. And that's characterised in this report as the
22 "Application for [a] Long Term License"; correct?
23 A. NRD applied in 2010. Their application was deemed
24 non-satisfactory. The ministry informed them that they
25 didn't comply with their contractual obligations.
[Page 150]
18:26 1 Minister Kamanzi informed NRD on several occasions;
2 I also informed NRD of their non-compliance on several
3 occasions. And I see that this report is again
4 highlighting that NRD did not fulfil its obligations.
5 Q. Can I have an answer to my question? Let me break it
6 down a little bit, so that we can focus and move
7 a little quicker, hopefully.
8 The statements, the dates and what happened on those
9 dates, those are accurate: that's your understanding of
10 what was done on those dates; correct?
11 A. I'm not the one who wrote this report, sir.
12 Q. Can I ask you of your memory, please. You do recall --
13 A. NRD applied in 2010 for extension of their exploration
14 licence and grant of short-term mining licences. That
15 application was not successful because NRD didn't fulfil
16 its obligations. That is what I remember.
17 Q. Right. Mr Imena, you do recall the date of the initial
18 application was on or about November 29th 2010; correct?
19 A. The initial application was 2009. I didn't get the
20 question.
21 Q. The application submitted by NRD for an extension of
22 mining and exploration licence for Rutsiro, Sebeya,
23 Giciye, Nemba and Mara concessions was submitted on
24 November 29th 2010; correct?
25 A. Yes, it was submitted in 2010.
[Page 151]
18:28 1 Q. Then it is accurate in the rest of the first paragraph
2 as to when extensions of licences were issued by the
3 ministry; correct?
4 A. The ministry issued an extension, you are correct.
5 Q. And just like you, the author here recognises the amount
6 that NRD was proposing to spend over the period of the
7 licence that it was applying for; correct?
8 A. NRD presented a plan for investment: that's the one
9 I mentioned in my 2012 report.
10 Q. Well, you can agree with me then that that information
11 is accurate. What was submitted and what was extended,
12 as it's described in this report, is accurate; correct?
13 A. What I can agree is that there's a figure that was
14 presented by NRD, and that is what I know.
15 Q. Okay. The author -- someone who had worked on this, and
16 whoever reviewed it or commented on it before it became
17 in this form, they took those same facts that you
18 describe, recognising when things happen, and the
19 characterisation, the way it's described as events,
20 that's the application process for a long-term licence
21 by NRD: that's what -- this report characterises that.
22 Can you agree with that?
23 A. No.
24 Q. You don't agree that it even uses that language; you
25 won't agree with that?
[Page 152]
18:30 1 A. That is to be asked to the one who made that statement.
2 Q. Well --
3 A. But if I can be allowed to add on, NRD made
4 an application in January 2013 for a so-called
5 "long-term licence", but that application of
6 January 2013 was not satisfactory because it was just
7 a kind of copy-and-paste of the 2010 application.
8 Q. And you'll agree it's not mentioned here; right?
9 A. It's mentioned in my witness statement, and that's what
10 I'm mentioning to you.
11 Q. Sir, please focus on my question.
12 A. Yes, sir.
13 Q. You'll agree it's not mentioned in this assessment of
14 performance; correct?
15 A. It's not mentioned.
16 Q. So without reference to that, the author, and anybody
17 who reviewed it before it was put in this form,
18 characterised these events as the application for
19 a long-term licence for NRD; correct?
20 A. No.
21 Q. Okay. You do know that Mr Marshall repeatedly told you,
22 any time he communicated with you, that he considered
23 these events that are mentioned here as the application
24 for a long-term licence, and he wanted to negotiate such
25 terms; you'll agree with that, won't you?
[Page 153]
18:32 1 A. I don't agree. Can I explain?
2 Mr Marshall applied for extension of exploration
3 licence. That application came with application for
4 mining licence, short-term. That application was deemed
5 non-satisfactory. Mr Marshall was informed.
6 He then applied in 2013 for long-term licence. The
7 government, through the ministry and through the Rwanda
8 Development Board, told him that his application is not
9 satisfactory. But because we wanted to give him chances
10 to see if he can perform, he was invited to negotiate
11 for one concession, and possibly two concessions, and he
12 refused to that offer.
13 So this is what I can confirm.
14 Q. Is it actually your testimony that Mr Marshall did not
15 take the position with the ministry, in communications
16 with you and others that worked for you, that when
17 submitting the November 29th 2010 application, NRD's
18 intention was to obtain a long-term licence? Are you
19 saying Mr Marshall didn't say that?
20 A. It was very clear in the 2010 application that they were
21 applying for five years.
22 Q. Isn't it true the reason that this document in 2014 uses
23 the same reference to the application process that began
24 on November 29th 2010 as an application for a long-term
25 licence, isn't it true that it was because Mr Marshall,
[Page 154]
18:33 1 in his communications with people in the ministry, OGMR,
2 in talking about that application, suggested he intended
3 to get a long-term licence, and they, in responding to
4 him, said they understood that was the purpose? That
5 was the characterisation prior to this lawsuit,
6 wasn't it?
7 A. No.
8 Q. You will agree with me that there was no one within the
9 ministry that would have a reason for calling these
10 events an application for a long-term licence by NRD,
11 other than that's what they truthfully believed it was,
12 in this report?
13 A. NRD was clearly informed that if it wants to proceed
14 with its application, it is invited to negotiate for
15 short-term licences. There are letters from RDB and
16 there are letters from MINIRENA to confirm that.
17 Q. I'll try one more time, sir. I'm asking you recognising
18 that you say you don't know who the author is. So
19 I'm asking you what is therefore an open question as to
20 anybody who could have been working on this within
21 MINIRENA.
22 You're not aware of anyone who was working on the
23 NRD file in August 2014 having a purpose or reason for
24 characterising the November 29th 2010 application as
25 an application for a long-term licence, other than
[Page 155]
18:35 1 whoever was working on it believed that to be true,
2 are you?
3 A. RDB -- no, sorry. NRD submitted a long-term application
4 in 2013, but that application was not approved. Then
5 down the line, NRD continued to ask, to request for
6 long-term licences. But the ministry continued to
7 inform NRD that our position is: short-term licences, if
8 any.
9 Q. And that's your answer to my question, right?
10 A. Yes. Yes, sir.
11 Q. As of August 2014, where in the process for the
12 application for a licence did the assessment of
13 performance fall?
14 A. Can you repeat, please?
15 Q. Yes. This document is called an "Assessment of ...
16 Performance".
17 A. Yes.
18 Q. It's dated "August 12, 2014". As of that date, where in
19 the process for an applicant seeking a licence to
20 operate a mine, where in that process did MINIRENA'S
21 assessment of its performance fall?
22 A. NRD was still occupying -- if I may use that
23 terminology -- the concessions, or the mining areas at
24 that time. So it is obvious that an assessment of
25 performance can be conducted at any moment, on any area.
[Page 156]
18:37 1 Q. Did MINIRENA conduct assessments of performances by the
2 other short-term licence holders who applied for
3 concessions after their initial term expired?
4 A. Assessments of performance were conducted at any moment
5 it was deemed necessary by MINIRENA.
6 Q. Okay. So in terms of the process for deciding whether
7 or not to grant a licence that was being applied for by
8 a short-term licence-holder seeking to extend it, please
9 tell me when the ministry performed its assessment of
10 performance. What did it do before then, what did it do
11 after then in the process?
12 A. When an application is received at the ministry, there's
13 an evaluation that is made on that application. That is
14 normal. But at any moment, [if] either the Natural
15 Resources Authority or the Minister of Natural Resources
16 would deem it necessary, it can conduct an assessment.
17 Q. Sir, if an application for a licence extending beyond
18 the initial short-term licence by any applicant for
19 mining operations was submitted, won't you agree that
20 the application itself would first be analysed and
21 determined whether the application failed to qualify,
22 and therefore would not proceed, before doing the work
23 involved in an assessment of performance?
24 A. Everything can be done in order to collect the maximum
25 information that will inform the ministry towards making
[Page 157]
18:39 1 a decision.
2 Q. But what was done? What was the practice? What was the
3 policy? How were all the mining operation licence
4 applicants treated, in terms of a process? After
5 submitting the application, what came next, and where in
6 that process did an assessment of performance fall for
7 everyone?
8 A. What was normal is that an application is received,
9 there's an evaluation conducted, and that evaluation
10 comprises any activity that will lead the ministry to
11 gather all the information so that a decision is taken
12 on the application.
13 So there would be maybe an evaluating committee,
14 a committee visiting the sites, discussions with the
15 applicants. So all are part of the process of
16 evaluating the application.
17 Q. Would you agree with me that means that as of
18 August 14th 2012, MINIRENA considered NRD's application
19 for a long-term licence pending and under consideration,
20 but not already rejected?
21 A. The -- I think we issued a final notice that the
22 application was rejected, I think it was in 2015, if
23 I remember properly. So between 2010 to 2015, we were
24 still giving NRD all the chances possible to see if they
25 can come to the table and negotiate an agreement for
[Page 158]
18:41 1 mining.
2 Q. If I can ask you to look at the second page of R-118 and
3 "Fulfilment of Obligations". There, under section 3.1,
4 called "Exploration", is the sentence:
5 "It should be understood that the major objective of
6 these hybrid permits was to delineate the resources and
7 evaluate the reserves in the license areas."
8 Do you see that?
9 A. Yes, I see that.
10 Q. And the hybrid permit is the initial exploration licence
11 period; correct?
12 A. Can you repeat, please?
13 Q. The hybrid permit is the initial exploration licence
14 period where exploration and analysis, feasibility
15 studies, those actions are being conducted, for
16 an applicant who believes it may want to apply for
17 a concession?
18 A. You are right.
19 Q. Okay. It's true, is it not, that --
20 THE PRESIDENT: Sorry. Am I right that the word "hybrid"
21 reflects the fact that they are at the same time allowed
22 to mine, while they're exploring?
23 A. You are right, sir. You are right.
24 MR COWLEY: You agree with this statement that the major
25 objective at that time period was delineating and
[Page 159]
18:43 1 evaluating the resources and reserves, that the major
2 objective wasn't immediate industrialisation; correct?
3 A. The major objective in the contract signed by NRD was to
4 immediately start industrialisation and also conduct
5 exploration, evaluate the reserves, submit a feasibility
6 study. So it is clear in their contract. The fact that
7 it is mentioned as such in this report doesn't take away
8 the major objectives as stated in the signed contract.
9 Q. Well, doesn't pure logic and business sense dictate that
10 they can't all be given equal weight immediately after
11 signing the initial exploration licence? Because if you
12 immediately industrialise, without assessing reserves
13 and resources, you're setting everyone up for failure by
14 pouring money into something with no idea what you want
15 to do and how you want to do it.
16 A. These mines -- for instance, the Nemba mine had been
17 discovered in the '40s or the 1930s. So it was
18 an already-existing mine, with infrastructure on site.
19 So to immediately move on with industrialisation, it was
20 very logic[al], and that is what NRD signed in its
21 contract.
22 Q. You're not suggesting that the shareholders and entities
23 behind NRD, when they originally obtained a contract in
24 2006, were the same parties that from the 1940s, as you
25 say, had started mining efforts, before the government
[Page 160]
18:45 1 took over?
2 A. I didn't get the question well, sorry.
3 Q. NRD in 2006 is not the same entity as whatever private
4 enterprise or government agency was behind the
5 initiation of mining in the 1940s, was it?
6 A. No, it wasn't.
7 Q. So they didn't have the information on which the
8 infrastructure that you say was at the facility was
9 built, what their expectations were, such that they
10 could immediately industrialise it; correct?
11 A. I was not there in 2006 when they signed it, but I think
12 there's a good reason NRD in 2006 planned and signed and
13 agreed to immediately start industrialisation. So they
14 have a good reason.
15 Q. Well, there are five concessions, and you've mentioned
16 one that had anything predating NRD's obtaining
17 a concession. The concessions in the western part of
18 the state had nothing; correct?
19 A. Not at all. It's not correct, what you are saying.
20 It's not correct, what you are saying, not at all
21 correct.
22 Q. Don't you know when you're assessing NRD in 2012, you
23 say you began, that it's completely unfair to suggest,
24 just because the words in the initial contract said
25 "immediately industrialise", to actually believe
[Page 161]
18:46 1 someone, upon taking the initial four-year licence,
2 would pour money into industrialising with plants and
3 automatic equipment, and whatever else might go into it
4 eventually to extract all the minerals profitably, to do
5 it immediately on day one, that that's very unfair;
6 don't you know that?
7 A. I don't agree. The government had a plan when it
8 privatised the mines. The plan was to change and
9 modernise the activities in the country, and that
10 required a lot of investment, fresh money. So that's
11 why the government invited people, investors, to come
12 and develop this sector. And the government believed in
13 NRD, and NRD pledged to invest about $40 million in
14 modernising the operations.
15 So we were very disappointed in the fact that people
16 who were thought to be very experienced in mining failed
17 to implement the plan that they draw themselves.
18 Q. FTI, if I could ask you to turn to the next page, 3.2.
19 Under "Production", it does reference the language
20 of the contract you're referring to. You'll agree with
21 me that the author, and whoever reviewed this at the
22 time before this document came in this form, did not use
23 the same weighty concept of the "major objective" of the
24 hybrid agreement being industrial exploitation
25 immediately; that's not how that's characterised there,
[Page 162]
18:48 1 correct?
2 A. No, what I'm reading is that, "NRD was expected to
3 proceed immediately to industrial exploitation", and
4 that is what we were expecting.
5 Q. And you can agree with me that the authors of this used
6 the same description that this term -- excuse me. They
7 did not ascribe to this term of the contract the
8 characterisation that it was a "major objective" of the
9 contract, did they?
10 A. This is the interpretation of the author. But at the
11 ministry level, the interpretation was that proceeding
12 to industrialisation of the mine is key to the plan of
13 NRD.
14 Q. And proceeding could be gradual, because
15 industrialisation of Rwanda's mining industry was always
16 intended to be a gradual process, was it not?
17 A. It's gradual everywhere in the world.
18 Q. And true of Rwanda; correct? So when Rwanda was looking
19 at its short-term exploratory contracts with applicants
20 such as NRD, when it was interpreting the "immediately
21 to industrialise" provision, it reasonably understood
22 that that means effectively it would be gradual, it
23 would be over time; correct?
24 A. You are right. It was -- you are very right. These
25 $40 millions had to be spent within four years, and then
[Page 163]
18:50 1 in the next phase they should have spent much more than
2 40. So that's why we know that this investment is
3 gradual. They should have started with the 40 and then
4 proceeded with much more investment.
5 Unfortunately, most of the investment was just from
6 retains from minerals they sold from the concession, not
7 fresh money from the outside.
8 Q. Let's stick with those two points. In 2006, when NRD's
9 founders were applying and they put out their budget,
10 what were -- the policy, practices and guidelines of
11 MINIRENA, what did they say about what the amount to be
12 invested in each mine had to be for every applicant?
13 A. We, for instance, had the policy in 2010 to invest
14 an estimate of about USD $3 million in exploration for
15 an area the size of 7 kilometres squared.
16 Q. I asked you about 2006, when the contract was signed and
17 people used the language, not at the end.
18 When people signed up and made the projections, what
19 did MINIRENA say was the amount that each applicant
20 would be held to equally of investment?
21 A. MINIRENA, when they signed this contract in 2006, they
22 were happy with the $40 million pledged. So it means it
23 was okay with the policy of 2006.
24 Q. Isn't it true that MINIRENA had no such minimum equally
25 applicable to all applicants for a short-term
[Page 164]
18:52 1 exploratory licence?
2 A. I don't remember what was the situation on that fact in
3 2006.
4 Q. I'm sorry, I did speak over you at the beginning. Can
5 I ask you to repeat at least the beginning of that prior
6 answer, and I'll do that by repeating the question.
7 A. Yes, please.
8 Q. In 2006, what did MINIRENA say was its policy that
9 applied equally to every applicant for a short-term
10 exploratory licence on investment: that there was
11 a minimum amount, a specific amount total, or that they
12 just left everybody free to say the number that they
13 wanted and they set no parameters?
14 A. I don't remember the policy that was there in 2006,
15 I was not working yet for MINIRENA.
16 Q. Right. But you inherited this contract and you looked
17 in this file and you made an assessment of what to do
18 with it. So you had to look back at 2006 if you were
19 actually going to interpret what NRD was supposed to do.
20 Your only way to do that is to learn what it was told
21 the contract meant when it signed it, right?
22 A. I don't remember the policy in 2006 about minimum
23 investment.
24 Q. How about whether you looked into it? When you wrote
25 your 2012 assessment, for example, two years before
[Page 165]
18:53 1 this, did you contact the people who were involved in
2 issuing the licence within the agency to find out from
3 their communications, oral or written or email, what was
4 said, what was told, before you went to your superiors
5 and said, "This was the contract expectations when they
6 signed it"?
7 A. In 2012, first -- the first thing I read, I read the
8 contracts. And the contract was the basis on which
9 everything would be built. After reading that, I read
10 the investment plan, the assessments done by my
11 colleague or my supervisor at that time, and then I made
12 my own assessment. I didn't have to go further than
13 what was signed in the contract.
14 Q. You were looking at making assessments of other
15 applicants at that time, not just NRD; correct?
16 A. It might have happened.
17 Q. Did you notice that they had different numbers for
18 proposed investment, for example?
19 A. I don't think -- I don't remember. But what I remember
20 is that NRD signed for $40 million and invested much,
21 much less than their pledge.
22 Q. To be clear, when reporting to your superiors in 2012
23 what the contract required and what the expectations
24 were, you actually didn't communicate with anyone within
25 MINIRENA about what their expectations that were
[Page 166]
18:55 1 communicated to NRD were, did you?
2 A. All -- sorry, can you repeat, please?
3 Q. Yes. When you wrote your assessment in 2012 about what
4 the contract required and how you assessed NRD met it,
5 you did not first ask anyone who was involved in issuing
6 that contract with NRD in 2006 what they actually
7 communicated their expectations to be?
8 A. I discussed with Dr Michael, who was my supervisor,
9 I got his report and I used it as a tool. I was not
10 there in 2006, but the senior person in my department at
11 that time was Dr Michael, and I got his report.
12 Q. Is it your testimony that his report says that he
13 actually analysed and obtained the information about the
14 representations made to NRD about contract expectations
15 when they were signed?
16 A. The contract expectations are very clear in the
17 contracts: proceeding to industrial mining, conduct
18 exploration, conduct a feasibility study and provide
19 reports, two years. So that was the baseline for my
20 evaluation. And what I saw, by the way, is that NRD
21 failed on all those points.
22 Q. With all due respect, sir, haven't we just discussed
23 somewhat of an ambiguity or tension between the language
24 in the contract, "to proceed immediately to industrial
25 exploitation", and your acknowledgment that around the
[Page 167]
18:57 1 world, and including Rwanda, that progress towards
2 industrialisation is actually gradual; it's not
3 immediate anywhere?
4 A. I totally agree. But this 40 million for four years was
5 just one phase in the process to full industrial, and
6 they failed to succeed with phase 1.
7 Q. I would like to stick with this point though, sir,
8 before you tell me that there's others to consider.
9 Because this is assessing performance, you assessed
10 performance two years earlier, and you're both referring
11 to contracts.
12 I'm trying to determine: when you were doing it,
13 when you were reaching conclusions and passing them on,
14 didn't you actually recognise that it can't mean
15 immediate industrialisation in 2006; it has to mean over
16 time? So there's the language and there's the what it
17 must mean and how it's going to be applied. Didn't you
18 recognise that?
19 A. I recognised that NRD did some good preliminary
20 exploratory work. So if you want me to tell you that
21 I recognise what they did, yes, I did recognise that
22 they did a good preliminary work. But they were
23 supposed to do a reserve calculation and a feasibility
24 study, and unfortunately they didn't.
25 Q. I'm not asking about those things. Please, I don't mean
[Page 168]
18:58 1 to cut you off, but I am trying to push for time to
2 actually cover what my questions are.
3 So you gave me your answer, as much as you're going
4 to give it, as to whether you recognise the distinction
5 between the literal language with regards to industrial
6 exploitation, and the reality of how long it takes.
7 My next question is: in that process of looking at
8 that element -- that's the element we're on right now --
9 did you go further and look into what the policy that
10 was announced and communicated to investors in Rwanda's
11 mining industry in 2006 was? Did you hold up your
12 expectations against what was communicated to see if
13 they were consistent before passing on an assessment?
14 A. I can repeat again; I think, unfortunately, it would be
15 the same answer.
16 My assessment was first based on the contract that
17 was signed. So I looked at what was the -- were the
18 conditions in the contract and made an assessment, and
19 it came with the findings that I have been highlighting
20 again. If you allow, I can highlight them again.
21 THE PRESIDENT: Not this evening, because we've reached
22 7 o'clock in this country, 8 o'clock, I think, where you
23 are, and that's time to adjourn.
24 Could I make one statement of housekeeping. I asked
25 at the beginning whether we could have some laptop
[Page 169]
19:00 1 assistance in getting the data in a user-friendly form
2 on our laptops. We haven't yet received that. If we
3 could have it before we sit the day after tomorrow,
4 which will be our last day -- and we'll allow
5 a reasonable time, so we could come in an hour before we
6 sat in order to make sure we get what we need -- that
7 would be most helpful.
8 MR KAPLAN: Mr President, perhaps I can speak with the
9 assistant to the Tribunal, if she's available, after we
10 end today.
11 THE PRESIDENT: Yes, thank you.
12 MR KAPLAN: Thank you.
13 THE PRESIDENT: Okay.
14 I must ask you, Mr Imena: over the adjournment until
15 tomorrow, please do not discuss this case with anybody.
16 MR IMENA: Yes, sir.
17 THE PRESIDENT: That's one of our rules.
18 Thank you very much. We'll adjourn until midday
19 tomorrow.
20 (7.01 pm)
21 (The hearing adjourned until 12.00 noon the following day)
22
23
24
25
[Page 1]
A
Aaronson 2:7,7,8,8
able 14:6 36:13 48:13
48:16,22 56:20
59:22 69:8 111:24
113:22,24 116:7
146:9
above 46:9 110:22
112:10
accept 11:25 63:20
75:10
accepted 5:7 58:20
68:4,9
accepting 10:16 11:3
access 19:3,4,12 26:1
87:16 102:22 110:7
116:7 124:12,15
125:6 126:10 127:6
127:7 128:21
131:24 148:7,13
accessible 132:15
according 16:11 44:25
146:22
accordingly 51:19
account 13:1,11
110:10 126:4,9,10
126:24 127:4,13,19
127:21,25 128:2,4,6
128:11,12,20,22
129:12 130:11
131:14 133:12,13
accounting 31:17
accounts 129:3,14,17
130:4,9
accuracy 43:21
accurate 55:1 82:18
103:18,19 107:15
122:7 148:20 150:9
151:1,11,12
accurately 42:17
Achievements 104:10
acknowledge 12:3
40:8 111:14
acknowledged 41:6
111:21
acknowledging 64:22
acknowledgment
166:25
acronym 84:5
acting 72:7
action 13:2,4,6 73:23
77:17 100:12,20
102:13,24,25
103:16 109:7
actions 50:6 55:12
60:24 76:1 158:15
active 3:5
activities 72:2 118:2
161:9
activity 117:10,20,23
157:10
acts 34:1
actual 122:17
actually 7:11 21:14
51:5 54:13 66:19
67:6 70:14 95:6
100:25 108:11
109:8 110:16 123:4
148:22 153:14
160:25 164:19
165:24 166:6,13
167:2,14 168:2
add 20:4 108:16
140:11 152:3
added 93:20
addition 108:6 129:13
additional 1:9 52:24
86:6 93:20 105:13
address 59:11 119:13
127:4,6,7,13,14,19
127:20 133:13
134:24
addressed 47:24
addressing 147:2
adjourn 57:22 168:23
169:18
adjourned 99:8
169:21
adjournment 169:14
administrative 39:24
55:25
admissibility 8:18
admissible 8:8
admit 1:25 11:17
12:21
advance 31:14
advisor 136:22
affairs 136:22,22
137:4
afraid 35:7
Africa 20:19 34:15
46:3 97:13
after 9:20 10:3,11
15:22 17:3,5,5,11
18:10 19:13 21:8,21
24:8,20 31:17 38:8
46:18 47:15 48:6
49:3 50:15,22 52:20
61:3 63:1 64:13
68:23 76:24 77:4,12
77:25 84:11 89:15
92:8 93:16 94:1
101:14 103:2
106:20 122:15
123:5,10 127:17
133:6 136:2 138:1
147:8,17 156:3,11
157:4 159:10 165:9
169:3,9
afternoon 9:16,17
80:24 82:13,14
again 7:1,20 12:10,12
16:13 17:1 18:13
37:14,17,18 39:18
44:10 45:4 53:2
58:8 60:10 61:3
63:3 73:6 74:1 78:3
78:8,13 86:14 87:9
95:11,22,23 99:15
114:9,19 122:2
126:16 131:18
132:17 134:15,21
143:22 150:3
168:14,20,20
against 13:2,6 31:18
31:23 32:2 35:16
36:24 37:22 38:5,11
44:24 45:10 46:15
48:10 50:18 51:14
51:16,18 52:12,25
53:6 55:5 61:6
64:24 66:2,6 72:2
76:15 78:2 79:22
106:12 109:9,17
168:12
age 123:19
agency 84:4 135:18,19
135:22,24 136:15
160:4 165:2
aggrieved 12:18
ago 17:14 23:3,22
62:23 118:19
agree 11:2 13:5,9,20
14:10 19:12 21:12
21:18 26:2,6,23
27:3,8 38:9 39:20
40:16 41:12,20
43:23 44:9 46:11
47:14 48:5 49:12
50:5,20 53:20 67:16
69:3 74:14 76:13
77:17,25 78:2,6,12
78:14 90:9,14 92:1
92:10 100:20
109:19 111:20
116:9 118:12,18,23
119:5 137:16 147:8
148:18 151:10,13
151:22,24,25 152:8
152:13,25 153:1
154:8 156:19
157:17 158:24
161:7,20 162:5
167:4
agreed 8:14 26:20
70:4 74:9 94:14
103:1 160:13
agreeing 74:12
agreement 22:21 23:2
23:4,17 24:16,17
27:21 28:1 45:6
94:11 157:25
161:24
ahead 42:9 117:6
ALASTAIR 2:6
ALEX 1:22
aligns 87:8 121:12
Alison 100:1,10,16
133:9
alleged 37:22
allocation 11:9 13:22
allow 143:24 149:14
168:20 169:4
allowed 8:1 73:11
83:1 97:1,2 124:6
126:5 131:18 152:3
158:21
allowing 82:3
almost 13:21 28:6
alone 127:13,20
along 7:9 37:7 50:24
aloud 29:17 81:1
already 56:10 60:12
78:9 84:12,17 86:3
86:17,19,21 125:10
132:12 136:19
142:11,22 157:20
already-existing
159:18
alright 9:11 20:4 36:8
95:10 125:13
129:23 134:18
although 111:23
148:18
always 8:17 30:14
43:17 44:3 47:9
52:21 93:21 162:15
ambiguity 166:23
amended 122:23
123:21
amendment 30:3
among 36:9 69:24
70:2 71:23
amongst 56:5
amount 39:13,21
40:21 46:14 50:18
52:6,8 55:7,23
105:3 106:19
111:18 122:22
151:5 163:11,19
164:11,11
amounts 54:19 66:22
77:16 79:14
analyse 6:16
analysed 5:13 156:20
166:13
analysis 99:16 112:18
113:15 158:14
ANNA 2:23
annex 43:7,14,15 44:4
44:17 45:23 62:1
67:15 80:2
annexe 79:10,19
annexed 41:23 42:2
43:17 44:5,14 54:8
54:11,14,15 61:11
61:11 62:12,16 79:2
Anne-Marie 1:23
announced 10:16
168:10
announcement 11:3,5
announcements 33:25
another 17:23 18:2,14
25:10 36:19 56:17
57:19 88:22 92:17
104:19 113:22
120:23 125:1 141:5
answer 3:24 4:15,21
7:6,8 12:9 23:21
26:25 38:23 42:24
44:11 46:8 47:13,22
49:4 59:8 63:20
64:9 75:22 87:8
90:16 96:5 113:22
120:25 124:8
125:24 139:14
140:24 141:3 150:5
155:9 164:6 168:3
168:15
answered 16:25 79:14
answering 12:13
42:22 83:16
answers 141:19
antagonistic 124:18
ANTHONY 3:4 9:13
anticipated 108:4
anybody 65:9,13
131:3,3 133:21
152:16 154:20
169:15
anyone 65:3 75:23
78:16 89:11 94:21
137:14,22 138:11
138:11 154:22
165:24 166:5
anything 4:3,4 7:7,10
7:14,25 27:4 47:5
69:12,15,16 102:13
118:15 124:3
125:25 133:2 134:8
136:8 160:16
anywhere 58:23 113:1
115:1 131:2 167:3
Apart 100:15
apologies 54:1 95:22
146:8
apologise 19:5,9,24
27:2 31:14 94:3
110:24 136:5 145:5
Apparently 37:13,16
APPEARANCES 2:1
appeared 82:16
append 80:1
appended 62:1
applicability 94:8
applicable 163:25
applicant 98:10
155:19 156:18
158:16 163:12,19
164:9
applicants 90:4,7
94:23 95:3 96:24
97:3,20 142:4,21
143:5,9,25 157:4,15
162:19 163:25
165:15
applications 10:16
11:4 89:18,20,23,25
97:6 143:4 144:2,11
applied 90:12 97:9
109:17 149:23
150:13 153:2,6
156:2,7 164:9
167:17
applied-for 107:11
apply 91:5 106:1
158:16
applying 93:24 94:24
98:15 151:7 153:21
163:9
appointed 84:12,13
126:7 127:3,17
appointment 75:15
appraisals 32:6
appreciate 6:4 33:12
37:1 49:14 51:24
97:23 129:23
appropriate 12:6 77:7
87:19
approval 32:25
approved 155:4
approximate 95:21
142:7
April 113:5,8
arbitration 1:1,1
53:12 71:4,8,21
72:6 73:5 74:24
134:1
ARB/18/21 1:4
area 155:25 163:15
areas 97:22 130:10
155:23 158:7
argument 7:5
argumentative 124:19
around 89:20 90:18
91:4,14 93:10 96:9
99:13 107:8 109:2,4
147:16 166:25
arranged 69:22
Article 121:6
Article4 119:25
ascribe 162:7
aside 72:5 75:14
asked 6:10 16:9 25:3
33:14 35:16 37:19
46:24 47:12,13
50:17 68:3 70:13
71:13 72:15 78:21
79:1,13 84:18 85:3
85:5,8,10 86:15
87:6,8 89:5 94:4
95:8 103:6 112:24
113:6,23 115:23
123:14 125:16
132:11 140:5,10
141:20 145:19
147:17 152:1
163:16 168:24
asking 7:24 24:18
33:13 36:6 40:10
44:8 48:2 49:11
51:14,15,24 52:1
54:4 55:8 61:14
62:6,7 63:14 64:4
75:20 90:3 95:4
97:3 101:24 102:3
103:4 113:19
118:23 119:12,16
122:4 123:8 125:22
125:25 128:24
130:16 131:11
140:8,10 142:10
143:16 144:5
154:17,19 167:25
asks 33:17
aspect 33:11
aspects 114:17 117:22
assess 61:6
assessed 106:12,14,16
166:4 167:9
assessing 159:12
160:22 167:9
[Page 2]
assessment 16:6 18:25
85:12 86:1,2,7,15
86:20,21 87:13,15
87:17 88:6,12,21
89:3,6 106:20 112:5
112:12 113:10
140:5 146:22,25
148:11,15 149:3,7
149:19 152:13
155:12,15,21,24
156:9,16,23 157:6
164:17,25 165:12
166:3 168:13,16,18
assessments 86:17
156:1,4 165:10,14
asset 36:19 77:24
assets 32:11 34:6,23
35:9 36:5,9,17
38:16 39:23 40:22
59:22 74:11 76:24
77:1,18,22,23
assist 8:11 28:19 80:8
116:24
assistance 2:10,12
56:9 169:1
assistant 2:23 39:24
56:1 169:9
assisted 2:14
attach 41:15 43:18,19
49:20,25 56:7
attached 11:6 43:5
44:7 54:6 58:23
59:2 60:10 61:9,24
62:10 65:18 87:25
88:4,5 100:7 112:15
113:1,6,10 114:25
115:4,6,10,21 121:3
134:19
attaching 124:25
attachment 24:11,14
25:3 42:1
attachments 119:21
attempt 71:14 133:16
attention 11:24 13:20
26:11 58:9 110:23
117:10 140:2,20
auction 32:11,12,21
33:1,3,19,22 34:13
46:15,16,19,21 47:7
47:15 48:1,6,9 52:6
52:11 76:19
auctioned 35:6 39:2
76:21 77:15
auctions 34:25 35:2,5
audio 16:25
August 139:17 140:4
140:9 146:16,25
147:7,14,16,22
149:12 154:23
155:11,18 157:18
Australian 10:2
author 147:1 151:5,15
152:16 154:18
161:21 162:10
authorisation 33:23
78:11
authorised 77:10 80:2
authority 85:6 112:21
132:23 135:12,13
135:14,19,23,25
136:10,13,15,18,24
137:15,23 138:12
147:12 156:15
authors 162:5
automatic 161:3
automatically 12:25
44:14 54:8 79:24
availability 56:18
available 9:4,8 52:14
52:14 56:14 86:8
96:3 125:20 133:20
143:14 169:9
avoid 38:16 39:22
40:22
award 10:17 71:4,8,21
72:6 73:5 74:24
awarded 14:15 15:20
19:20 98:1 142:4,13
aware 22:25 23:1 24:8
24:15 26:19 105:18
122:25 123:1,18
124:24 137:25
138:5 154:22
away 10:4 20:14,14
74:6 75:10 82:23
83:2 159:7
B
B 1:22 76:5
back 3:3 6:15 14:11
19:9 24:19 26:14
32:10 33:2,21 40:1
44:1 54:9,16 58:8
65:24 68:24 72:17
75:7,23 77:25 78:2
78:7 86:10 89:12
90:1 96:15 99:15
108:5,12 117:19
119:5 120:10
129:24 132:10
134:5,18 138:17
139:10,23 144:15
144:19,23 145:6
164:18
background 84:2,2,8
backwards 84:15
bailiff 31:1,16,21,25
32:5,9,14,24 33:2,9
33:12,17,20,23 34:3
35:1,18 44:17 45:14
45:20,20 52:15,16
52:18,19,20 64:22
74:11 77:22 78:16
78:17
bailiffs 35:4 45:13
52:9,10
balance 80:21
ballpark 95:2
ban 148:6,10
bank 13:1,11
banned 147:23 148:13
Barbara 1:12 30:25
40:17 41:1,2,3
55:15 58:19
based 18:6 20:15
21:12,18 59:6 72:6
73:5 111:14 113:16
113:23 132:12
133:18 140:6
168:16
baseline 166:19
basic 60:6
basically 51:3
basis 3:14 8:20 52:21
52:21 71:24 72:1
98:5,13 123:15
165:8
Bay 1:15 2:4
became 5:2 101:6
103:15 126:17,19
151:16
become 96:3
becoming 4:20 127:17
before 1:10 3:3 5:1
6:24 13:4 19:13
22:16 23:18 32:1,7
39:8,10,16,19 49:3
63:1 69:22 73:17
75:7,23 80:18 83:16
86:10,12 87:22
89:10 99:11 100:18
101:22 104:7 107:7
112:19,24 120:25
126:8 127:22,23
134:9 135:23 136:7
136:8,8 140:22
141:3,15,17,22
145:18 147:4
151:16 152:17
156:10,22 159:25
161:22 164:25
165:4 167:8 168:13
169:3,5
beg 10:21
began 5:9 9:21 92:6
105:20 127:3,5
153:23 160:23
begin 1:4
beginning 64:21 74:9
96:9 164:4,5 168:25
begun 79:13 148:12
behalf 1:24 15:15 18:5
18:14,20 19:20
26:16 36:6,20 37:10
37:21 50:7 55:3
67:21 68:3,10
124:22 144:17
behind 119:24 159:23
160:4
being 1:24 4:19 7:8
8:9 9:1,20 13:15
19:13 23:25 31:18
45:16 47:6,14 53:24
82:5 84:24 89:5
90:17 97:25 101:22
102:4 104:21 110:3
146:16 147:20
156:7 158:15
161:24
belaboured 129:1
believe 2:15 4:9 5:10
16:24 23:23 39:17
42:22 56:12,16 64:2
64:3,4 70:22 71:1
72:7 160:25
believed 55:1 154:11
155:1 161:12
believes 158:16
believing 71:3
belongings 77:21
below 46:9 118:3
Ben 55:20 72:14,22
75:3 76:7
benefit 36:13
Benzinge 53:1,4,11
54:19,21 55:2,6,10
55:14,15,18,22,24
56:3 58:12,13,16
59:4 69:23 70:5,25
72:14,18,22 73:7
74:3 75:3,8 77:18
Benzinge's 53:22 54:5
56:5
beside 78:24
best 94:5 117:2 125:21
139:21
better 4:5 26:7,19
48:15 80:21 113:21
between 17:11 18:18
22:21 30:15 33:8
37:25 42:18 68:17
90:3,4 96:10 102:15
102:17 134:10
138:7 157:23
166:23 168:5
beyond 34:23 88:20
100:16 104:20,24
124:24 129:17
156:17
Bidega 2:11,22 3:21
81:9,12,20 134:12
137:8,12,13 138:1,8
Bidega's 3:17 81:15
134:22
BIDWELL 1:11
big 22:4
Biryabarema 86:20
99:25
Bisesero 27:23,25
28:3,7,15,16 90:17
bit 15:10 19:7 37:1
47:21 101:8,11
102:1 103:21 121:6
124:24 150:6
black 63:24
blamed 68:25
board 2:9 55:14 56:4
72:10,12,21 75:1
96:21 153:8
Bonjour 29:10
Bosco 3:7 29:6 70:10
70:12 72:5,25 74:4
75:13 76:22 77:10
boss 40:6 41:2
both 1:13,23 59:25
63:10,11 92:9,20
125:2 127:14
167:10
bother 28:9
bottom 47:17,24,25
62:25 63:17 64:6
117:20
bought 28:5
bounce 107:8
break 39:4,8 57:15
58:3 80:16,17,20
99:5,12 109:14,21
109:25 110:9
113:18 141:9,13,18
144:18,21 150:5
breakdown 110:2,6
breaking 10:23 19:7
breakout 56:24 57:2,3
118:2 144:23
breakouts 118:4
breaks 80:15
brief 57:6 125:8
briefly 135:13 148:16
bring 3:21 5:15 9:10
10:6 11:21 13:17
29:3 37:25 40:18
44:10 83:17 120:16
122:4 134:5 139:19
139:23 146:15
bringing 65:25 80:19
British 1:2
broader 90:20
broadly 6:16
BRODSKY 2:22
broke 15:10
broken 64:16 149:2
brought 9:8 22:18
23:11 24:7,14 34:10
36:17,18 50:13 53:5
58:8 60:21 66:15
76:12 79:21 83:23
86:7 104:9 116:18
119:18 138:17
BRYAN 2:3
budget 103:21,23
104:4,18,23 106:5,6
108:3,15 109:10,20
110:2 114:13 163:9
budgeted 105:17
106:2 109:21
budgeting 105:12
Buildings 2:6,6
built 160:9 165:9
BURNHAM 2:18
business 107:10
117:11,25 127:12
159:9
BVG 22:21 26:8 27:10
C
C 76:5 116:4
cadastre 143:19,23
144:13
calculating 108:22
calculation 106:7
167:23
call 24:2,4 25:10 63:15
64:5 87:10 93:3
110:24 144:7
called 3:7,11 8:15 9:2
27:11 29:6 34:14
48:7 54:5 65:11
80:23 86:20 92:2
93:2 96:11 135:17
135:18 155:15
158:4
calling 133:24 154:9
came 5:19 6:22 38:8
50:25 66:21 67:6
68:2,15,24 77:5,15
78:11 94:14 98:15
109:19 128:10
153:3 157:5 161:22
168:19
capable 42:21 67:17
124:1
capacity 5:16 6:10 7:5
101:5 114:1 125:15
127:18 137:1
capital 103:23 105:6
109:18 119:25
car 17:15 35:3,6 36:10
36:15,17,19,24
76:20,25 77:13,14
77:23 78:5,10
carried 52:20 82:16
carry 2:6 16:21 17:22
20:4 79:15 145:11
case 1:4 5:15 6:23
19:6 21:2 30:19
32:20 34:10,18
35:17,19,20 36:3
43:20 45:19,20
50:16,22 51:6,10,13
51:21,25,25 52:2,4
71:9,13,14 116:1,4
124:22 128:13
131:1,15 132:16
141:8 169:15
cases 51:12,17 97:9
categorise 8:23
category 94:13 98:12
CATHERINE 2:14
caused 122:18
Cc 22:6,8 134:22
135:2
ceased 2:11
cease-and-desist
71:17
Celse 100:3
Centre 1:2
certain 30:18 35:11
40:5 148:18
certainly 25:13 57:1
61:20 62:20 67:16
83:10
CHABINSKA 2:24
chain 122:13 133:17
133:22 134:15
chairs 60:8
challenge 5:4 6:20
8:17 25:11,24 43:21
54:11 76:8
challenged 5:25 25:2
43:22
challenges 8:20 47:4,5
chambers 145:6
[Page 3]
chance 26:25
chances 153:9 157:24
change 30:5 81:25
91:14 161:8
changed 5:2 96:4
123:24 136:11
changes 3:3
changing 81:17
channel 29:1
CHAPIN 2:16
character 20:16
characterisation
42:14,15 151:19
154:5 162:8
characterise 111:17
characterised 38:2
149:21 152:18
161:25
characterises 151:21
characterising 154:24
charge 73:23 81:20,22
135:20,25 144:13
chart 91:10
chase 28:9
chat 56:22
check 49:15 75:22,25
83:8 88:5 91:13,23
114:9 116:12,23
119:14 125:7
128:22 132:18,24
133:15
checked 77:4
checking 73:6 117:1
choose 28:25 110:19
chronology 148:16
circulated 87:3,4,14
132:14
circumstance 33:15
circumstances 28:8
81:14 147:6,13
cite 39:14 40:19 41:9
cited 66:5
cites 39:12 53:17,18
claim 12:22 40:15
53:5,22 79:23,23
claimant 41:14
Claimants 1:17 2:2
1:8,11 5:14 22:20
24:9,16 25:18,20
31:6 82:8 115:14,18
116:1,3
claimed 108:19,20,23
109:17
claiming 35:12 70:10
71:10,25
claims 2:11,12,14 68:5
clarification 8:4
clarify 107:23
clarity 98:4 115:23
CLAUDE 2:19
clear 4:22 12:12 37:24
62:9 64:2 68:4,8
70:22 75:18 85:14
92:23 101:20
103:10 116:2 125:9
126:2 127:9 129:1
131:12 133:5
153:20 159:6
165:22 166:16
clearer 86:15
clearly 75:1 154:13
Clement 135:4,5,6,9
135:11,22 137:8,12
137:17 138:1
client 33:6 34:16,20
36:4 38:10
clients 38:2 55:3,19
58:14 66:1,9 67:21
77:19
client's 51:6,10 52:2,3
close 13:16 51:22
145:13
closed 70:10
closing 79:18
coaching 42:20
COFFEE 2:15
colleague 165:11
colleagues 35:18
50:24 99:22,23
100:2 131:7,9,20,22
132:13,19
collect 33:16 34:15
36:5,20 37:10,22
38:11,15 44:24
45:10 46:3 50:21
76:23 78:1 156:24
collected 36:10 51:7
52:4,13 119:21
collecting 33:13 34:19
34:22 38:4 55:3
76:15
collection 31:23 35:20
36:3 41:14 50:7
COLLEEN 2:23
combine 51:23
combined 51:17
come 8:19 24:5 30:19
33:15 38:25 74:16
74:20 88:6 92:9
93:7 96:3 119:7
123:23 129:4 131:8
131:21 157:25
161:11 169:5
comes 7:15 33:6 119:9
coming 3:3 28:18 29:8
78:25 80:7 90:12
91:4 93:9 119:10
command 33:7 43:6
commandment 43:10
comment 100:10,15
104:2 114:4
commented 151:16
comments 103:14
committee 157:13,14
communicate 15:14
165:24
communicated 88:9
152:22 166:1,7
168:10,12
communicating 90:6
communication 4:9
17:16 89:4,7,9,12
90:1 137:14 138:7
138:14
communications
17:10 30:7 90:3
102:17 127:11,18
153:15 154:1 165:3
companies 91:21
92:19 97:9
company 1:16 10:2
16:10,17 18:15 20:9
28:4,4 31:2,4 32:18
32:18 38:24 40:3
41:13 43:2,8,12
45:21 51:18 56:5
72:11 73:25 74:25
75:5,19 76:5 77:22
96:11 120:4 121:9
compare 144:1
comparing 95:16
comparison 13:12
complain 138:13
complaint 35:12 65:12
70:9 71:10,25
complete 51:21 52:1
69:9 73:1
completed 16:6 57:24
57:24 70:21 73:3,21
75:17
completely 51:21
160:23
completing 52:3
complied 44:23 45:9
comply 149:25
comprehensive 67:1
67:12
comprises 157:10
computer 9:15 25:4
85:20,24 86:25
125:7 129:20
130:11,12,17,23
131:4,14 132:8
143:7,8,25 144:12
computerised 123:22
123:22
concede 15:8,15
concept 161:23
concern 7:2 73:9 74:1
74:6,8
concerned 8:14
concerning 50:6
concession 5:18,23 6:2
10:3,4,11,13,17,25
11:4 12:2 13:13
14:2,7,14 18:14,23
18:25 19:13,19 20:8
27:23 28:1 60:25
89:17,21,24 90:6,7
90:11,11,14,17,21
91:8 92:21 93:4
94:2,21,25 95:1
96:12,25 97:21,21
104:19,25 105:24
141:21 142:2,8,10
142:11,15,16,21
153:11 158:17
160:17 163:6
concessions 9:22
12:17 15:9,21 20:14
78:3,7,13 90:24
91:3,18,20,23 92:3
92:6,14,15,16 93:2
93:6,17,20 94:6,12
94:15,18 95:5,13,24
96:2,17 97:5,15,19
97:20,22 98:2,20
104:14,24 108:7
109:22 111:10,11
142:4,13 143:5,9
147:7,14 149:11
150:23 153:11
155:23 156:3
160:15,17
conclude 80:18
conclusion 77:6 88:6
conclusions 88:7,9
103:8 167:13
conditions 168:18
conduct 78:17 92:20
98:14 111:12 156:1
156:16 159:4
166:17,18
conducted 34:25 35:2
35:5 147:21 155:25
156:4 157:9 158:15
conducting 127:12
conference 1:5
conferred 57:13
Confidential 101:18
102:8 114:10
confirm 36:18 49:14
75:20 107:19,24
108:3 118:9,17,21
118:22,22 153:13
154:16
confirmed 8:6 73:7
confirming 21:20
confusing 4:21
connection 27:14
145:7
conscience 29:19 81:2
consider 111:25 167:8
consideration 157:19
considered 55:22
71:21 85:16 97:10
103:8 152:22
157:18
consisted 60:18
112:11
consistent 72:7 76:1
168:13
consolidated 85:15
constant 93:21 95:15
95:17,18 96:1
123:20
constitutes 62:17 63:5
Consulting 2:22,22
contact 5:19 30:9,14
31:3 40:3 128:2
165:1
contacted 3:21
contained 102:12
121:20 129:16,18
containing 66:17
contains 66:19
content 1:17,17 141:1
contents 65:2
context 129:25 147:18
continuation 91:9
continue 9:6 39:7 52:7
76:15 77:10 78:1,14
80:2 90:14 91:5
99:10 141:16
147:24 148:6,15
continued 3:4,5 9:13
9:19 14:2 35:19
90:13 91:9 128:2
136:25 155:5,6
contract 33:7 66:21
67:6 105:15,23
106:1 107:9 109:24
110:11 121:6 159:3
159:6,8,21,23
160:24 161:20
162:7,9 163:16,21
164:16,21 165:5,8
165:13,23 166:4,6
166:14,16,24
168:16,18
contracts 105:21
122:13 137:2
162:19 165:8
166:17 167:11
contractual 149:25
contributed 103:5
control 65:4 68:21
70:24 74:16,21
controlled 20:9
controller 62:21 64:10
conversation 3:18,24
16:14 21:6,15
cooperation 22:20
23:2,17 24:16 28:1
coordinator 100:1
copie 79:9,19
copied 99:21 131:6
137:12 138:1
copies 4:7 30:20 38:23
45:23 55:4 59:6
67:3 77:3,6 85:22
85:23 87:5
copy 17:18 22:9 24:10
32:16 33:6,8 41:20
41:25 42:3,11 43:4
43:15,19,23 45:15
50:25 52:22 53:5
58:22 59:1 67:9,11
67:17,22 68:14
87:15 88:11 115:13
131:14,15 134:22
copy-and-paste 152:7
corporate 72:11,13
correction 30:3
correctly 16:7 48:24
82:15 84:3 130:2
corresponding 63:9
corrupt 20:19
corruption 20:18
counsel 1:13 3:12 6:6
8:17 25:21 49:1
62:8,11 83:13
123:18,25
counted 106:11
countersign 24:19
counting 105:12
countries 20:19
country 20:13,18
161:9 168:22
couple 68:24 141:18
course 31:12 34:12
37:19 116:21
court 12:22 32:10,12
32:14,19,25,25 33:2
33:7,18,21,24 35:13
45:1 79:13,15,22
courtesy 83:10
courts 79:11
court-ordered 32:10
cover 11:6 41:24
168:2
covered 52:7 84:10
105:6 117:13 123:3
covers 119:6
Cowley 2:3 3:5,9,13
1:6,19 2:9,14 3:15
4:15,22,24 5:1 8:6
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133:12,14 153:7
159:25 160:4 161:7
161:11,12
gradual 162:14,16,17
162:22 163:3 167:2
gradually 128:4
132:21
grant 150:14 156:7
granted 1:12 91:21,23
94:25 96:17 142:16
142:18,20 144:8
grateful 8:4
GROSH 2:11
ground 9:1
groundless 79:23
grounds 1:22
group 1:15 2:4 35:24
50:16,19 51:4 52:24
groups 138:10
guarantee 123:23
guard 65:11
guards 64:15
guess 7:4 103:6,17
117:5 134:4
guidelines 163:10
H
Habiyambere 135:4
Hage 2:7,7,8,8
half 99:5
half-hour 57:15,19,20
80:16
halt 35:15
hand 107:21
handing 75:7
handle 51:2
handled 51:5
handwritten 63:11
hand-delivered 58:18
happen 3:20,24 40:4
46:10 127:14
151:18
happened 5:1 16:2,12
24:15 43:13,22
46:20 99:20 100:23
125:9 129:2 148:1
150:8 165:16
happens 45:13
happy 7:22 44:15
81:23,24 82:4
124:16 139:10
140:22 163:22
hard 57:14,16 85:22
86:24 87:1 140:15
HARRISON 2:3
having 6:14 8:21 26:8
39:8 68:21 71:16
77:2 109:17 112:25
123:18 133:25
142:2 143:14 146:9
154:23
head 20:13 22:7 30:7
health 82:3
hear 12:8,9 54:1 146:7
heard 7:1,6 10:18
12:11 90:2 100:24
138:11
hearing 1:8 1:12,21
3:19 38:19 115:2,9
115:15,19 116:4
121:19 122:10
124:9 169:21
hearings 6:22,24 8:1
heavy 35:10
held 48:6 55:5 60:2
82:23 91:19 102:4
102:25 163:20
Hello 38:18
help 2:21 50:17 98:11
140:16
helped 129:11
helpful 110:18 169:7
helping 108:25
helps 19:6
her 30:8,13 40:6 41:2
hesitate 40:5
hide 134:8 137:14
hiding 133:2
highlight 134:21
168:20
highlighted 58:8
104:11 134:12
highlighting 108:18
132:6 150:4 168:19
Hill 2:6 3:6,8,10,12
1:6,16,17 4:14,18
5:1 7:6 8:4 26:24
27:19 28:17,22
29:24 31:5 42:14
49:4 76:10 78:20
80:6,10 81:6,8 82:7
83:4 123:13 144:17
144:25 145:5,10,12
him 2:15,23,25,25 3:1
3:10,15,21 4:6 5:11
5:19,20 6:8,15 7:2,3
7:8,14,25 8:2 9:6
22:5 24:4,18 26:24
27:1 29:3 42:16
44:2 53:12,19 61:19
62:3 79:13 82:3
87:10 94:22 124:12
135:5 138:2,7
144:19 153:8,9
154:4
himself 113:13 124:13
hinges 7:7,13
hint 14:23
hire 28:13
hired 5:15
HoD 22:10,10
hold 14:6 33:1,18 84:9
85:17 106:2 109:9
117:5 168:11
holder 91:8
holders 5:18 6:2 89:17
89:21,24 90:7,11,11
90:22 91:2 141:21
142:2,8,10,11,22
156:2
holding 11:14 14:2
16:17
home 129:15,16
HON 1:11
honour 1:19 4:24
29:19 49:18 58:5
81:2
honourable 20:12
hopefully 109:15
150:7
Hotmail 132:23
hour 56:13,17 57:15
57:23,25 99:5 169:5
hours 39:6
house 9:11
housekeeping 168:24
hungry 56:11
hybrid 158:6,10,13,20
161:24
hypothetically 40:10
I
ICSID 2:23,24
idea 6:3 17:10 83:18
95:2 159:14
identification 66:8
identified 40:15 67:20
97:25 98:6 111:10
142:2,12,22
identify 62:2,15 63:3
63:14 65:14 88:16
identifying 31:22 60:3
66:6,7
imagine 39:9
Imena 3:11 80:11,23
80:24 81:2,9 82:7
82:10,13,24,25 83:8
83:17,19,20,21
98:17 99:15 116:19
116:22 124:6,9,17
125:8 139:7 141:11
142:1 145:9,17
150:17 169:14,16
immediate 159:2
167:3,15
immediately 9:21
13:15,21 17:6 39:22
46:18 159:4,10,12
159:19 160:10,13
160:25 161:5,25
162:3,20 166:24
impact 16:6 18:24
implement 161:17
important 85:17
improve 19:14
improved 20:6 21:7
inappropriate 124:5
138:3,7,13
incident 33:11
include 44:18 53:22
97:11,11,12,13
99:25,25 113:12
included 19:15 36:9
52:25 55:21 60:6,15
65:23 67:15 72:18
106:3 107:10,16
108:5 122:11,22
127:19
includes 42:1 43:3,4
60:17
including 35:9 53:2
60:7 62:14 72:14
84:2 86:9 91:18
135:20 167:1
inconsistency 42:18
inconsistent 71:7
123:16
increased 94:19 96:20
indeed 30:5 36:12,25
38:7 41:4 67:3 80:7
83:23
independent 3:11
22:21 32:6 45:13
96:24
index 3:1 117:3,5
indicate 43:7 114:7
indicated 34:1 70:15
73:18,19 114:8
individual 77:22
118:4,8,8
individual-year 118:2