Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (41 page)
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Authors: Naomi Roht-Arriaza
A primary means that government officials are using to gain necessary testimony for gacaca is a strong policy encouraging confession. The organic law prescribes substantially reduced sentences for those who confess their crimes, allowing those who plead guilty to serve half of their sentence in their home communities carrying out community service.
[70]
The government and its supporters have undertaken significant campaigns within the prisons to encourage confession, and thousands have complied, many inspired by a Born Again Christian revival movement that has swept through the prisons and pushed prisoners to repent their sins. In 2003, thousands of prisoners who had confessed were given provisional release into their communities, since many of them had already served more years in prison awaiting trial than their crimes were likely to warrant.
The policy of encouraging confession, while important to the success of gacaca, has certain obvious problems. The fact is that confession is rewarded with reduced sentences and early release creates great incentive to confess, but it does not guarantee the integrity of confessions. Most prisoners have confessed to lesser crimes, while only a limited number have confessed to participating in killings. Those who are innocent of any crime have a strong incentive to
confess to something in order to win their release.
The greatest concern related to testimony for gacaca is the possibility of retaliation against those who testify. There have already been reports in a few places of assassinations of people who have testified against individuals in gacaca, and survivors' groups have raised serious concerns about the safety of survivors.
[71]
Retaliation is a threat not simply for survivors but for anyone who chooses to testify, as a couple of Hutu women at a gacaca hearing that I observed in Kibuye spoke openly about their fear of being punished “for telling the truth”. Unfortunately, the decentralized nature of gacaca makes it very difficult to provide protection to witnesses throughout the country. Protection of witnesses will depend upon the support of the general population.
The final major concern for gacaca courts is the susceptibility of the process to political manipulation. The government initially decided to undertake gacaca to speed up the prosecution of genocide trials, but other political considerations (notably the adoption of a new constitution and presidential and parliamentary elections) have delayed the process by several years. The government has promoted gacaca as an important potential source of reconciliation, because it will let
communities come to terms with what happened during the genocide,
[72]
but the decision to completely exclude other crimes, such as massacres carried out by the RPF during the war, means that only a partial accounting of the past will be achieved. Gacaca in part serves the government's interest in highlighting the centrality of the genocide and whitewashing its own crimes.
[73]
If gacaca in any way challenges these interests, either by insisting on considering RPF offenses or by failing to find sufficient numbers of people guilty of crimes, the government might seek to intervene, which could have severe repercussions for the ability of gacaca to contribute to reconciliation. If the government is too actively engaged in gacaca, then it may appear to
be merely a tool for social control and not a fair judicial mechanism.
In this article, I have attempted to assess the potential for gacaca courts in Rwanda. In light of international human rights standards, there are some concerns which must be addressed, but there is nothing inherent to the gacaca process that is inimical to the protection of human rights. Gacaca appears to be a reasonable expression of the Rwandan government's sovereign right to establish courts consistent with the country's own culture and traditions. In addition, the acceptance of customary courts and restorative justice mechanisms in numerous countries around the globe provides important precedent for the acceptance of such mechanisms in a variety of contexts. A review of gacaca highlights the point that the right to a fair trial will not be realized in the same way in each jurisdiction. In fact, there are countless variations in the way states conduct criminal and civil trials, and most variations do not raise concerns for human rights standards. A less culturally bound notion of what constitutes a fair trial than that used by the critics of gacaca must be explored. What is involved in ensuring a fair trial within a community justice mechanism, as opposed to a court system, must be considered, and the cultural, political, social, and economic climate of Rwanda taken into account.
More troubling are some of the logistical and political concerns related to gacaca courts, yet the gacaca process itself is a response to the severe problems facing Rwanda in the aftermath of the genocide. With more than 100,000 people in prison under genocide accusations, Rwanda's court system was simply incapable of treating all of the cases. Whatever logistical problems gacaca may face, the system is certainly an advance over allowing thousands of accused to languish indefinitely in prison without trial. Furthermore, the idea of bringing justice to the people, of
involving the population in the process of determining what happened in Rwanda in 1994 and who should be held accountable, is laudable. The involvement of the population in gacaca will, in the end, be what determines gacaca's success or failure. My research indicates that gacaca is highly popular with the general population primarily because it gives the people of Rwanda a rare opportunity to control their own destinies. People are enthusiastic about a judicial system that they hope to be able to see working themselves and over which they expect to have substantial influence. This does not guarantee the success of gacaca, but it does provide hope that gacaca may allow Rwanda to move toward reconciliation. Whatever problems ultimately arise, the popularity within the Rwandan population of the idea of gacaca suggests that other countries recovering from mass atrocity should consider community‐based justice mechanisms as a possible alternative.
[1]
The definitive source on the genocide is Alison Des Forges,
Leave None to Tell the Story: Genocide in Rwanda
(New York: Human Rights Watch, 1999). I discuss the genocide elsewhere, including Timothy Longman, “Civil Society and the Rwandan Genocide”, in Richard Joseph, ed.,
State, Conflict, and Democracy in Africa
(Boulder: Lynne Rienner, 1998).
[2]
See Gerald Gahima, “Re‐establishing the Rule of Law and Encouraging Good Governance”, speech given to 55th Annual DPI/NGO Conference, New York, September 9, 2002.
[3]
The law creating gacaca was adopted in October 2000 as “Organic Law concerning the creation of Gacaca Courts and organization of pursuit of infractions constituting genocide or crimes against humanity, committed between 1 October 1990 and 31 December 1994.” In response to criticisms from human rights organizations, and others, a law modifying the original law was adopted in June 2001 as “Organic Law no. 33/2001 of 22/6/2001 modifying and completing Organic Law no. 40/2000 of 26 January 2001 concerning the creation of Gacaca jurisdictions and organization of trials of infractions constituting the crime of genocide or crimes against humanity, committed between October 1, 1990 and December 31, 1994.” Both laws are available at
www.inkiko-gacaca.gov.rw.
[4]
Among the tasks laid out in the Organic Law, Article 34, is drawing up lists of those who lived in the cell before the genocide, members of the cell who were victims, “the presumed authors of the crimes covered by the present law,” and property damaged or destroyed.
[5]
The survey was designed and directed by Timothy Longman and Harvey Weinstein of the Human Rights Center of the University of California, Berkeley, Phuong Pham of the Peyson Center of Tulane University, and Alice Karekezi of the Center for Conflict Management at the National University of Rwanda.
[6]
The research was part of a John D. and Catherine T. MacArthur funded project, “Communities in Crisis: Justice, Accountability and Social Reconstruction in Rwanda and former Yugoslavia,” Eric Stover and Harvey Weinstein, Principal Investigators. Longman has conducted fieldwork in Rwanda during two previous periods, 1992–93 and 1995–96.
[7]
For an overview of judicial initiatives in response to the Rwandan genocide, see Alison Des Forges and Timothy Longman, “Legal Responses to Genocide in Rwanda”, in Harvey M. Weinstein and Eric Stover, eds.,
My Neighbor, My Enemy
:
Justice and Community in the Aftermath of Mass Atrocity
(Cambridge: Cambridge University Press, 2004), pp. 49–68.
[8]
United Nations Security Council Resolution 955, November 8, 1994. Available at
www.ictr.org.
[9]
International Crisis Group, “Tribunal Pénal International pour le Rwanda: Le compte à rebourss”, Nairobi and Brussels: ICG, August 1, 2002; and
www.ictr.org
; letter dated December 5, 2005, from President of the ICTR to President of the Security Council, UN Document, S/2005/782.
[10]
Timothy Longman, Phuong Pham, and Harvey Weinstein, “Rwandan Attitudes Toward the International Criminal Tribunal for Rwanda”, forthcoming paper. See also, Timothy Longman, Phuong Pham, and Harvey Weinstein, “Connecting Justice to Human Experience: Attitudes Toward Justice and Reconciliation in Rwanda”, in Weinstein and Stover,
My Neighbor, My Enemy
, pp. 206–225.
[11]
Lawyers Committee for Human Rights, “Prosecuting Genocide in Rwanda: A Lawyers Commitee Report on the ICTR and National Trials”, New York, LCHR, July 1997.
[12]
Ligue Rwandaise pour la Promotion et la Défense des Droits de l'Homme (LIPRODHOR),
Quatre Ans de Proces de Genocide: Quelle base pour les Juriditions Gacaca
(Kigali: Centre de Documentation et d'Information sur les Procès de Génocide, July 2001), at pp. 4–5.
[13]
See Gahima, “Reestablishing the Rule of Law”, pp. 3–5.
[14]
LIPRODHOR,
Quatre Ans
, pp. 19–54; Lawyers Committee, “Prosecuting Genocide”.
[15]
Interview with representative of LIPRODHOR, August 28, 2002.
[16]
See Phuong Pham, Harvey Weinstein, and Timothy Longman, “Rwandan Attitudes Toward the International Criminal Tribunal for Rwanda”,
Journal of the American Medical Association
, August 5, 2004, pp. 602–613. Attitudes toward Rwandan trials were slightly more negative than positive among both Hutu and Tutsi, but negative attitudes were strongest among Tutsi.
[17]
Based on a survey conducted by the author for Internews and the International Center for Transitional Justice in late 2004.
[18]
Alice Karekezi, “Juridictions Gacaca: Lutte contre l'Impunité et Promotion de la Réconciliation Nationale”,
Cahiers du Centre de Gestion des Conflits
, no. 3 (May 2001), pp. 9–96; Filip Reyntjens, “Le
gacaca
ou la justice du gazon au Rwanda”, (December 1990)
Politique Africaine
, 40, pp. 31–41.
[19]
Charles Ntampaka, “Le
gacaca
: une juridiction pénale populaire”, in Charles de Lespinay and Emile Mworoha, eds.,
Constuire l'Etat de droit: Le Burundi et la région des Grands Lacs
(Paris: Harmattan, 2001). This
limitation was not, however, absolute, as at least some informants in our research remembered gacacas held even for murder during the colonial era.
[20]
Reyntjens, “Le
Gacaca
ou la justice du gazon”.
[21]
Karekezi, “Juridictions gacaca”, p. 36. Participants in the current gacaca process that we observed made considerable reference to disputes over property looted during the genocide already settled through gacaca meetings held since the genocide.
[22]
Karekezi, “Juridictions gacaca”, pp. 17–22.
[23]
Ibid
., pp. 30–37. The law is cited in note 5.
[24]
Interview with Anastase Balinda, Team Leader of Documents, Production, and Publishing Service, National Service of Gacaca Jurisdictions, in Kigali, January 13, 2005.
[25]
Alice Karekezi, personal communication.
[26]
Karekezi, “Juridictions gacaca”, and interview with Cyanzayire, August 28, 2002, and interviews in Kigali and Butare, May, June, and August 2002.
[27]
Districts are similar to American counties.