Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (21 page)

Moreover, the government of Rwanda argued that international standards of due process were far too time-consuming at national courts, where the bulk of
genocide prosecutions were slated to occur. By 1998 it was apparent that it would take over 100 years to process the approximately 120,000 genocide suspects languishing under deplorable prison conditions.
³¹
And, as with formal processes at the international level, ordinary Rwandans were estranged from the trials in Kigali due to difficulties of access and a lack of literacy or familiarity with formal procedures. Thus, the establishment of the pilot
gacaca
courts in 2002 was in explicit rejection of “classic” or “Western” justice. The Rwandan government sought a speedier process in what it claimed would be a culturally legitimate forum that would enable ordinary Rwandans to deal with the genocide in a face-to-face process.

Inspired by traditional practices translated as “justice on the grass,” the reinvented
gacaca
courts were first codified in Organic Law No. 40 of 2001 (
Setting up Gacaca Jurisdictions
) and given a jurisdictional competence like that of formal courts. Unlike formal courts, however,
gacaca
is broadly participatory. There is an abundant literature on the workings and modifications of
gacaca
over the years, and so I will not rehearse that in detail here.
³²
Briefly, there are approximately 12,000
gacaca
courts operated by 250,000 elected lay judges (
Inyangamugayo
or “persons of integrity”). All genocide suspects except for accused leaders and rapists are prosecuted in the
gacaca
courts (as of 2008 rapists also come under
gacaca
’s jurisdiction). All community members over the age of 18 are expected to attend their local
gacaca
sessions both in the investigative phase, where community members helped determine victims and suspects, and in the trial phase, where witnesses corroborate, revise, or reject the evidence presented. Perpetrators are expected to confess and apologize in exchange for a reduced sentence, survivors to forgive, and the
Inyangamugayo
to judge innocence or guilt and to mete out the penalty in accordance with legislated guidelines. The government’s claim is that
gacaca
will become “the basis of collaboration and unity, mainly because when the truth will be known, there will be no more suspicion, the author will be punished, justice will be done to the victim and to the innocent prisoner who will be reintegrated in the Rwandan society.”
³³

As I have argued elsewhere,
³⁴
the international attention directed toward
gacaca
, particularly during its pilot phase, fixated on the legality of the courts. Early on, Amnesty International and Human Rights Watch expressed concerns about
gacaca
’s lack of defense counsel, potential use of hearsay evidence and false accusations, and the poor training of lay judges.
³⁵
While these NGOs sought in part to use law as a stop on the RPF’s growing authoritarianism, they faced attack for an “absolutist” insistence on “rigid” and “universalizing” standards that would simply return
gacaca
to the formal juridical model which had already proven expensive, slow, and removed.
³⁶
Contra
the centralized modality of response, argued defenders of
gacaca
, there is more than one way of doing things. Yet, these sophisticated arguments for the pluralization of justice ended up speaking to the “prima facie” legality of “
gacaca
as
gacaca
.”
³⁷
Gacaca
, however, is not a self-contained legal process simply aimed at community-level reconciliation; it is also part of a larger effort to consolidate state power. If the description of
gacaca
in the paragraph above pertained to the government’s ideal, we see below that
gacaca
in practice has involved state coercion.

“To Forgive
is
the Law”: Reconciliation and the Politics of the State
³⁸

The RPF operates as a one-party state under the guise of multi-party democracy. It has silenced, jailed, and disappeared political opponents; it has “Tutsified” state institutions; co-opted or attacked non-governmental organizations; rigged elections; and restricted freedoms of the press, association, and movement.
³⁹
These violations are generally tolerated by the international community, in part due to profound guilt over its inaction in 1994—a guilt that is instrumentalized by the RPF as it claims moral legitimacy for ending the genocide.
⁴⁰
In some respects, it may be that a legalistic, technocratic approach (which has dominated regime/donor/ INGOs’ implementation of
gacaca
) provides “a safeguard in interactions with government officials.”
⁴¹
Yet the consequence is a failure to scratch below the surface of what Ingelaere calls the RPF’s cultivated aesthetics of progress.
⁴²
Take, for instance, the policy of national unity and reconciliation. According to the Rwandan constitution, it is illegal to identify as Hutu, Tutsi, or Twa: there are only Rwandans. However, this artifice of reconciliation, as I will discuss further below, papers over the lived experience of ethnicity both during and after the genocide. It also enables charges of “divisionism” against political critics. Thus, to claim narrowly that “we only apply the law” is to ignore the profoundly political uses of
gacaca
in an intolerant and repressive environment.
⁴³

Although
gacaca
appears as a pluralization of transitional justice from the international perspective, from a more localized perspective we see that
gacaca
operates within a dense network of unequal relations of power. The Rwandan state was reorganized after the genocide but remains highly centralized, with administrative units at the provincial, district, sector, and cell levels. Below this are the
nyumbakumi
officials who are responsible for ten households. The
nyumbakumi
are heavily involved in the administration of
gacaca
, as are officials from the National Service of
Gacaca
Jurisdictions (NSGJ) based in Kigali. Together they work to “sensitize” the local population to
gacaca
, to monitor and instruct the proceedings, and to assist judges in the gathering of information. Such extensive state control in a “grassroots” forum has “often led to manipulation and derailing of the process by various actors, reducing judges’ room for maneuver when they are torn between the parties and the administrative authorities.”
⁴⁴
Thus, the community-driven spontaneity of traditional
gacaca
is largely eclipsed in the contemporary state-orchestrated process. We see this not least in the government’s resort to military round-ups for attendance, and state fines or imprisonment for absenteeism:
gacaca
is, as Waldorf puts it, an “unpopular popular justice.”
⁴⁵

Moreover,
gacaca
serves to reinforce a particular vision of the past and future. First of all,
gacaca
appears as a form of “victors’ justice” because war crimes committed by RPF soldiers are outside its jurisdiction. In spite of the government’s emphasis on ending the culture of impunity, which it sees as a significant factor in the genocide, the exclusion of RPF crimes fails to counteract Hutu extremists’“double genocide” ideology or to grapple with the complexities of Rwanda’s cycles of violence.
⁴⁶
Second, the collectivization of Hutu guilt is
reinforced through the potential processing of over 1 million cases in the
gacaca
courts. The government does not sufficiently explain the difference between the number of cases and the number of persons tried.
⁴⁷
Consequently, the perception created is that over half the adult male Hutu population is responsible for the genocide.
⁴⁸
Waldorf details how this serves to “exert a degree of social control over the Hutu majority” and could also be used “to disenfranchise a sizable proportion of eligible Hutu voters.”
⁴⁹
Since 2004 a small space has opened up for recognizing the “righteous” Hutus who saved people during the genocide.
⁵⁰
But, overall,
gacaca
is not a forum that allows Hutus to voice their suffering, at the hands of the RPF or otherwise, during the war and genocide. Only Tutsis are able to call themselves survivors and thus be eligible for state assistance.

Not surprisingly, many Hutu are unwilling to participate in
gacaca
because of its selectivity, its harsh penalties (sometimes motivated by land grabs), and the ways in which
gacaca
is used to settle old disputes. People are unwilling to defend the accused for fear of being accused themselves and the practice of
ceceka
(Kinyarwanda for “be quiet” or “shut up”) is a tacit agreement amongst Hutus not to testify against one another.
⁵¹
This shifts the evidentiary burden to survivors, most of whom were in hiding and did not witness crimes of genocide. On numerous occasions survivors (and judges) have been intimidated, attacked, or killed.
⁵²
For survivors,
gacaca
may appear as a “disguised amnesty” that produces prison releases and lightened sentences. They receive no compensation, despite legislation to the contrary. There is no direct restitution to victims of physical violence other than a forced apology, though community service (to the state) is also required. Restitution does exist for victims of property crimes; this is the sole area where the aggrieved parties or, in the absence of their agreement, the
inyangamugayo
, determine the amount in a customary manner.

Moreover, survivors
must
forgive; this is understood to be the law. In this,
gacaca
is part of a larger set of controls on Tutsi victimhood: commemorative practices, such as the public display of skulls and bones or required attendance at National Week of Mourning events, operate at the behest of the government and against the wishes of many Tutsi survivors.
⁵³
Rwandans “pretend peace”
⁵⁴
because to do otherwise is to risk being “un-Rwandan,” a label wrought with potential repercussions including fines or imprisonment. But the appearance of reconciliation belies widening socio-economic inequality (despite economic growth),
⁵⁵
the increasing political dominance of a small clique of Anglophone Tutsi elite, and growing state authoritarianism.

The reasons why people killed, resisted, or stood by during the genocide are complex, having to do with relational dynamics of power, opportunism, insecurity, and fear.
⁵⁶
Though the relationship between agency and structure is beyond my scope here, I am equally persuaded by Uvin’s argument that the genocide was predicated upon structural violence. Profound poverty and inequality, social and political exclusion, and hopelessness help in part to explain why elite messages of extremism and hate “fell on fertile ground” and were actively taken up in complex ways.
⁵⁷
Today, such conditions of structural violence have not abated, particularly amongst the poorest Rwandans, for whom poverty rather than ethnicity
may be an overriding social marker. A negative peace may exist, but positive peace remains out of grasp for ordinary Rwandans whose daily interactions with local and NSGJ officials at the
gacaca
courts reinforce the top-down power of the state. Some authors have warned that the “renewal” of structural violence in post-genocide Rwanda may “eventually again lead to acute violence.”
⁵⁸
Granted, there may be individual instances of closure during
gacaca
, bodies may be located and exhumed, or patterns of perpetration exposed. But because truth can only be revealed in a state-sanctioned manner and under conditions of extreme poverty and distrust, the general perception is that truth is partial and reconciliation is a facade. The struggle to undertake truth, justice, and reconciliation at the community level is inexorably linked to the authoritarian exercise of state power. Because lies, distrust, fear, and insecurity permeate
gacaca
overall, this undermines building an internal culture of peace, as well as individual and community well-being.

Peace Through Justice? Northern Uganda

As with the ICTR, the International Criminal Court is a centralizing mechanism of transitional justice. Unlike in Rwanda, however, transitional justice is being applied in Uganda in the midst of a conflict punctuated by numerous failed peace talks. The conflict in Northern Uganda between the Lord’s Resistance Army (LRA) and the Ugandan government under President Yoweri Museveni once extended over the Acholi, Lango, and Teso regions. Over 25 years old, this conflict was once characterized as “one of the worst humanitarian crises in the world because of the extensive and prolonged displacement” of an estimated 80–90 percent of the Acholi population.
⁵⁹
The LRA abducted an estimated 30,000 to 45,000 children and adults. They were brutally initiated into conscription, often forced to kill their own family members or to undergo severe beatings, and girls are additionally subjected to forced marriage. The Acholi population was terrorized and mutilated by the LRA; in turn, the Ugandan government was responsible for the forced displacement of people into camps where “protection” can “turn out to be a nightmare.”
⁶⁰
Kampala also chronically neglected the region, which is severely and disproportionately impoverished compared to the rest of the country.

After years of unsuccessful military offensives, the government acceded to pressure from local Acholi leaders to offer amnesty as a means of ending the conflict and allowing abductees to return home. The Amnesty Act of 2000 provides amnesty and material support to any rebel who voluntarily “comes out of the bush” and surrenders arms. At least 12,000 LRA “reporters” have returned, including Sam Kolo, the LRA’s alleged second-in-command.
⁶¹
The conflict dragged on, however, and in December 2003 President Museveni asked the ICC to investigate the LRA’s actions in Northern Uganda.
⁶²
In 2005 the ICC unsealed its warrants of arrest for five LRA commanders, including its notorious leader, Joseph Kony. Local Acholi people feared the indictment would give the President leave to step up the military campaign and exacerbate LRA violence,
thereby endangering their children’s safety as well spoiling peace talks.
⁶³
Indeed, the peace talks led by Ugandan government minister Betty Bigombe failed in 2005, and she has blamed the Court in part for not waiting long enough before unsealing the indictments.