Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (40 page)

The primary concern raised in relation to the impartiality of gacaca is the flip‐side of contextual competence and relates to the relationship of the judge to the community, the parties to the case, and possible involvement in the events that they will be asked to judge. Given the localized nature of the gacaca process and the extraordinary impact of the genocide on the entire society, judges are likely to know personally both the accused and their accusers, and they may have intimate, first‐hand knowledge of the events described. More seriously, some judges have been accused of having themselves participated in the genocide.
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Several safeguards against partiality are included in the gacaca process. The law requires judges to recuse themselves from cases involving family members, and the accused have the right to ask that judges whom they feel will be unfairly biased against them recuse themselves. These rules are to be enforced by the other judges on the panel and by the Sixth
Chamber.
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The election of the judges by the community on the basis of their “integrity, honesty and good conduct,”
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and the extremely high level of transparency also provide safeguards against partiality. In the communities where we have conducted research, the elections seem to have been successful at choosing people who are both highly respected by their communities and characterized by a sense of fairness. The communities elected panels of judges that were diverse in terms of ethnicity, gender, and age, which should help to gain confidence from the population and encourage them to participate. Further, judges who prove themselves to be biased or otherwise “acting in a way inconsistent with the qualities of a person of integrity”
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can be removed by their fellow judges, and community members will be able to raise the issue at various levels.
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None of this guarantees that Hutu will be willing to convict fellow Hutu, but it does create an environment that encourages fairness.

One other area of concern in terms of impartiality is the lack of distinction between the role of prosecutors and judges.
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The cell‐level inyangamugayo judges are responsible for organizing the initial phase of gacaca trials, the general assemblies, in which charges are registered and alleged crimes categorized. In the cases of category 4 crimes, the judges will then sit in judgment over the accused whose accusations they helped develop, and will also organize the communities in testifying about the alleged crimes. This potential bias is compounded by the lack of defense counsel for the accused (described below). However, it is the president of each gacaca court who is charged with organizing the trials, including the initial phase of laying charges and developing the prosecution. Other judges will not be directly involved in prosecutorial work. This division of responsibilities between the president and the rest of the judges does need to be carefully maintained to reduce concerns of bias in relation to the judges. The official legal advisors as well as monitors of the process must play a role as well in seeing that judges remain unbiased in the process.

A number of concerns for the right to a defense are related to the principle of equality of arms between the prosecution and defense. Where prosecutors appointed by the state investigate and compile the cases, the use of a defense lawyer is seen as restoring equality between the accused and the state/prosecutors. The gacaca process as currently conceived provides no legal representation for defendants. Further, some senior Rwandan government officials have implied that the accused will not be allowed representation by a defense counsel, even if they are able to supply counsel,
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because permitting defense counsel would distort a popular form of justice.
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The lack of access by
defendants to their case files and questions about the sufficiency of time provided to those accused to prepare their case also raise concerns about equality of arms.
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The failure to guarantee a right to defense counsel is certainly a concern. In a highly technical court, an unrepresented accused is at a grave disadvantage compared to the prosecutors, who are trained in the law and in court procedures, and the unrepresented party's ability to put forward an adequate case in defense may be severely undermined without the right to legal counsel. In gacaca, however, the role of professionals in the process is less extensive. Charges are drawn up in the assembly of the community during the first phase of the process. Non‐professional judges categorize the crimes and forward the charges to the appropriate level of courts, where, in the second phase of the process, the president of the court organizes the trial. Judicial police investigators (IPJs), employees of the office of the prosecutor in the Rwandan system, have been gathering evidence against those accused of participation in the genocide since 1994. The IPJs will supply whatever accusations and evidence they have gathered to the judges for the trial phase of gacaca, but have no further role. The only professionals involved in the process are the representatives of the Sixth Chamber, who are to act in an advisory capacity.
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As a result, defense counsel is less necessary to provide equality of arms in terms of technical and professional expertise. In fact, with lay judges, the participation in the trials of trained defense lawyers would tip the balance of trials in the favor of the defense.

Furthermore, the involvement of the community in the trial and the transparency of the conduct of the trial will be important factors in reducing the risk to the accused of being without legal counsel. The entire community, including the family and friends of the accused can be in attendance and will have the opportunity to speak in defense, and – contrary to some reports
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– the accused have a right to call witnesses and to interrogate those who accuse them. As one Supreme Court justice asserted, “The accused will be taken to their own community, so the whole community will be able to testify.”
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The interplay back and forth within the community and with the accused and tribunal may be capable of providing a level of protection for the accused in this context perhaps similar to the protection provided by the use of legally trained counsel in a Western‐style court. There is a heightened chance of success with such a system in the Rwandan context where the community is highly structured and organized, members of the community know each other, and many know who did what to whom during the genocide.

Although popular participation can help to correct for the lack of defense counsel during the actual trial, the lack of defense counsel raises serious problems in the pre‐trial phase for the ability of the accused to prepare an adequate defense. The inyangamugayo judges have received legal training (albeit quite limited) and have the benefit of legal advisers provided by the Sixth Chamber. No similar resources are available to provide technical assistance to the accused. The most serious problems presented for equality of arms by the lack of defense are in the area of preparation of a case. While the judges will have access to case files, it is not clear that the accused will have similar access. Even with access, the high level of illiteracy among Rwandans means that many will not be able to read their case files. Since the president, vice‐president, and secretary of all gacaca courts are required by law to be literate, illiterate accused will be at a disadvantage. Furthermore, the accused, because they are in prison, will not have an opportunity to carry out investigations and locate witnesses who could speak in their defense. Correcting this problem does not require defense lawyers, but could be solved using non‐lawyer defense assistants to provide defendants with legal advice and in gathering evidence, locating witnesses, and otherwise preparing their cases.

In brief, there does not appear to be anything inherent to the gacaca process that is prima facie inconsistent with the respect of human rights principles. Of course, whether gacaca tribunals do in fact meet human rights standards will depend on how the trials are conducted on the ground. If the above safeguards are not implemented adequately or if despite the above safeguards judges succumb to external pressure, favor particular parties, or misapply the law, the right of the accused to a fair trial will be compromised. In examining any such failures, it will be important to consider whether the failures were due to an inherent flaw in the gacaca model which is not amenable to improvement by the addition of further appropriate safeguards or the strengthening of existing safeguards, or alternatively, whether the failure was due to factors beyond the design of gacaca which could be improved by strengthening or employing new safeguards. As is demonstrated by the functioning of the national court system in Rwanda, setting up a Western‐style court system is no guarantee in itself that the trials conducted in that system will be fair.
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What is of key importance is how well the system enacts the various safeguards that enable a fair trial, like the provision of a competent, independent and impartial tribunal, and the equality of arms. We must seriously
contemplate the possibility that there is more than one acceptable way to do this.

While the organization of the gacaca courts should not be viewed as inherently inimical to the respect of human rights, logistical and political problems do raise serious concerns about how well gacaca will be able to contribute to the process of reconciliation in Rwanda. The effective functioning of gacaca depends on extensive popular participation and its ability to contribute to reconciliation depends in large part on its local autonomy, but several factors threaten both participation and autonomy.

Gacaca is a decentralized system that assumes that most genocide crimes were committed at the local level, where both details of what happened and who was responsible will be known. While this is true in many cases, much of the killing in Rwanda was not, in fact, “intimate violence”, where perpetrators and victims knew one another. Many Tutsi fled their communities when violence began and were killed elsewhere, meaning that the details of both who was killed and who did the killing may not be easily ascertained. The majority of victims were killed in major massacre sites, particularly churches, where relatively small groups of killers, mostly local party militia supported by gendarmes or soldiers, systematically killed thousands who had sought sanctuary. Often, killers from one community went to help out in neighboring communities after the slaughter in their own area was finished.

The fact that violence was not contained within local communities creates logistical problems for the decentralized nature of gacaca. In drawing up the lists of those killed, people in one community may know that certain people were killed simply because they were not found after the violence, while those in other communities may know that an individual participated in large‐scale massacres without being able to identify most of the victims. Prisoners are generally brought to their home communities to face accusations, and the logistics for this have been relatively well organized, but with gacaca beginning throughout the country, the complexity of transferring accused prisoners to each of the communities where they may have participated in genocide becomes acute. The fact that Rwanda has seen a substantial movement of people since the genocide also creates logistical problems for gacaca. In particular, many genocide survivors, whose evidence is considered essential to the success of gacaca, have moved to urban areas to start a new life. In some parts of the country, particularly in Gikongoro or in northern provinces like Ruhengeri, communities have virtually no genocide survivors left.

The logistical issue of organizing testimony at the local level when potential witnesses are scattered raises a number of broader concerns
over the role of witnesses in the gacaca process and the need for extensive popular participation. For gacaca to provide a fair trial it must involve a high level of participation by the population. It is the accessibility and transparency of gacaca that allow it to protect the rights of the defendants. The authors of the gacaca law, recognizing the importance of participation, included requirements for a quorum of community members for gacaca general assemblies.
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Yet already in the pilot phase there have been problems meeting quorum requirements in some communities. In particular, gacaca's limited focus only on crimes related to genocide and not more broadly on crimes against humanity committed during the war has led to some public frustration and declining participation. In our research in Byumba, in a region where there were extensive massacres
by RPF troops, many people expressed anger over the fact that the deaths of their family members were not included in gacaca. As a result, the gacaca assemblies in the communities we studied there had difficulty reaching the required quorum. The years of delay in starting gacaca throughout the country have also led to an increase in frustration and cynicism that may compromise participation. Despite concerns, however, the gacaca process remains popular. In the communities outside Byumba where we carried out observations, participation levels remained high. The statistics gathered by the Sixth Chamber on the test phase show that in general participation drops off after the first few meetings (where novelty encourages high attendance) but that most communities have no difficulty achieving quorum.
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The level of community participation will need to be monitored to ensure that gacaca is achieving a level of
accessibility and transparency sufficient to ensure a fair trial.

In addition to attending gacaca meetings, willingness to testify is essential to the success of gacaca. The testimony of genocide survivors has been considered essential in part because it has been assumed that they will be the most inclined to provide testimony. Relatives will probably be reluctant to testify against their own family members, and many people have assumed that Hutu in general will be under social pressure to show loyalty to their group by not testifying against their own group. Yet survivors generally are not the best sources of information, since they were not involved in the planning and execution of the genocide and most survived because they were in hiding during the violence. Further, survivors risk retraumatization from participating in trials and thus may be reluctant to participate. Where the genocide was most brutal, there may be no survivors. Hence, testimony from Hutu will be essential to the success of gacaca, a fact of which the organizers of gacaca are well aware. They have placed considerable emphasis in their
public education surrounding gacaca on the civic duty of all people with knowledge to testify and the importance of this to the future of the country.