The universality of human rights and what can be borrowed from a particular cultural heritage to affirm or further those rights need not be mutually exclusive. This is certainly the case with the Gacaca courts as they currently apply in Rwanda.
By definition, Gacaca are traditional councils and tribunals made up of elders to resolve conflict and administrate justice. Gacaca literally means ‘a resting and relaxing green lawn in the Rwandan homestead’ where family members or neighbours met to exchange views on issues directly affecting them.
Gacaca, like most traditional African justice systems, is collectivist, where the individual has no rights or duties other than within his or her group. The individual and the group are mutually complementary in a continuously reconciliatory process.
Reconciliation was key, of which this collective aspect was an indispensable medium in which individuals lived out their relations with each other, and with the wider society.
Gacaca therefore molded and defined the performance parameters expected of each individual in the Rwandan society. It is thus that even today Gacaca continues to define society such that in a betrothal or wedding ceremony, for instance, one’s moral uprightness has to be tested and found to be above reproach or engage in reconciliation if there are issues to be resolved. Gacaca is therefore not a post-genocide development, but has always been there defining the Rwandan society as a uniting and reconciliatory mechanism.
Reconciliation in Kinyarwanda, kwiyunga, which directly translated means “to mend ourselves,” has been central to Gacaca and African justice systems generally.
And, as the African proverb goes, when you want to resolve disputes, you do not take the knife to cut, but a needle to sew. In this sense, in affirming the rights of the plaintiff and defendant in the context of the wider society, restorative justice takes precedence over punitive or retributive justice in the reconciliation process.
Restorative justice applies more in a social context. It is today considered to be a forward looking, problem-solving approach to crime, which involves the parties themselves and the community generally.
The restorative justice approach presupposes dialogue between the parties to the crime; this is rare within typical criminal justice systems. Dialogue ensures that the offender understands the harm he or she has caused.
Holding the offender accountable and requiring him or her to make amends for the wrongs he has done is indeed greater than simple punishment.
The Gacaca process as currently applied in Rwanda is based on this very notion. In not only reducing the cost and speeding the justice process, it aimed to create a forum for debate of the crimes committed and not simply punish the accused.
The goal is to make the accused acknowledge the pain they have caused to their victims. The Gacaca process takes place in the communities in which the crimes were committed, and both the accused and the victims get a chance to be heard. Accused persons who publicly ask for forgiveness and confess to their crimes are ‘rewarded’ with reduced sentences.
Immediate Post-genocide, the UN Intervention and Gacaca
The memorial to Graham Turnbull as much recognizes the efforts we must continue to engage in ensuring the rule of law and human rights, as the history and circumstances that led to the young man’s demise.
In this sense this memorial and Gacaca find common historical ground in Rwanda in the immediate aftermath of the 1994 Genocide against the Tutsi.
It may be recalled that after the Genocide Rwanda was in utter anarchy. About one million Rwandans were killed and the rest of the population largely displaced. Over 2 million people had sought refuge in neighbouring countries, and many more were internally displaced.
There were countless numbers of orphans, widows, thousands of handicapped people and generally a very vulnerable and traumatised population.
Social and economic infrastructure was in a state of collapse. All economic indicators showed a desperate situation, with the inflation standing at close to 1000 percent, and most economic activity having ground to a complete halt.
Neither schools nor hospitals were functioning. The civil service had been decimated or its membership had fled into exile.
Law and order had completely broken down. Large scale atrocities were still going on in parts of the country. All national law enforcement agencies and judicial institutions had ceased to exist and the system of administration of justice had come to a complete standstill.
In the aftermath, as they fled to exile, the former government had vandalised and destroyed everything they could not transport, including telephones, typewriters, vehicles or anything that could be useful to the new regime.
The lack of basic infrastructure was exacerbated by the absence of a proper judicial team to prosecute suspects of genocide. The pre-1994 judicial system comprised of 758 judges and 70 prosecutors had mostly perished in the genocide, often at the hands of their colleagues.
The remainder had participated in the genocide and fled the country for fear of prosecution. By November 1994, a mere 244 judges, 12 prosecutors and 137 supportive staff remained.
Nearly all the members of the remaining prosecution team had suffered from the genocide in one way or other, and were unwilling to represent suspected genocidaires, while others were intimidated and abstained from intervening for fear of reprisals.
To the eyes of the international community at this point, Rwanda was ‘a complete write-off’. It was also at this time, after the dismal failure of the United Nations Assistance Mission in Rwanda (UNAMIR) to stop the genocide, that the UN made a humanitarian come-back as a face-saving gesture, but also to monitor the human rights situation which it was feared would escalate with the end of the genocide.
That was how Graham Turnbull found himself in Rwanda as a UN human rights monitor. By the time he met his death in February 1997 ‘confirming’ UN fears, insecurity was at its highest in Rwanda, especially in the northern region, as the former soldiers and the militia re-organised themselves, intent on continuing their genocidal campaign with the support of then Zaire, now Democratic Republic of Congo.
While that may remain in history, Rwanda was determined to go it alone in its disappointment in the failures of the international community. Along with reconstructing the shattered nation, justice and reconciliation was top-most on its agenda with a huge number of perpetrators to prosecute.
The official figures put this number at 818,564 persons suspected of having committed genocide. Considering these hundreds of thousands of people accused of committing crimes of genocide, it is clear that even the best criminal law justice system could not cope with these numbers.
To address this dire situation, the new Government of National Unity decided to merge two objectives, namely, to rehabilitate the already fragile justice system that had been drained in both human and material resources, and to organise genocide trials using the rehabilitated judicial system “to assure the prevalence of the rule of law, of respect for human rights and for [comity] among people.” (Drumbl, 2000)
The Gacaca Courts
Some critics of the Gacaca courts have tended to dismiss them as ad hoc kangaroo courts. However, contrary to this perception the Security Council Resolution that established the International Criminal Tribunal for Rwanda (ICTR) stressed “the need for international co-operation to strengthen the courts and judicial system of Rwanda, having regard in particular to the necessity of those courts to deal with large numbers of suspects.” (UN, S/RES/955 )
As a modernised system of justice to address a difficult situation, the Gacaca had four objectives, i.e., to bring the conflict into the open, involve the whole community in resolving it, provide for compensation, and bring the offender back into the community fold.
This was an effort not only to punish the genoçidaires, but also to get at the truth of the 1994 Genocide against the Tutsi. Rwandans elected approximately 225,000 inyangamugayo (literally ‘person of integrity’ in Kinyarwanda) to act as judges of the Gacaca courts.
Overall, the accused persons were put into four categories. The first category consisted of those who planned, organized, instigated, supervised and led the genocide, murderers who committed their crimes with excessive malice or zeal, and those who committed sexual torture or violence during the genocide. Within the Rwanda judicial system, these would to be tried by the ordinary courts, which apply common law procedural rules, under Article 2 of Organic Law16/2004.
In April 2008, the constitutive law was amended to extend the competence of gacaca courts to suspects under category one, i.e. rapists and genocide planners at the local level.
Category 2 offenders consisted of those who committed homicide or attacks which were intended to cause death or who were accomplices of those who committed such acts. Category 3 offenders were those who participated in serious attacks which were not intended to cause death. Category 4 offenders are those who committed property crimes.
The International Criminal Tribunal for Rwanda in Arusha, Tanzania, set about to prosecute high-ranking officials of the Government under category 1 offenses.
These included a former Prime Minister, 11 former Cabinet Ministers, 13 senior military officers, 16 high-ranking government administrators, five religious leaders, and a variety of other government officials and businessmen. As of May 2008, the ICTR had arrested a total of 74 persons and had completed 35 cases.
Although the ICTR has achieved some laudable successes, these have been overshadowed by the tribunal’s slow pace. The tribunal is also dogged by accusation of meting out “expensive justice.”
These criticisms have been exacerbated by the tribunal being based in Arusha, outside the jurisdiction in which the crimes were committed. Consequently, witnesses and evidence must be transported to the relevant tribunal at great expense. Furthermore, hiring the expert staff to enable such high-profile prosecutions has made the entire undertaking a costly venture.
Meanwhile, Organic Law 40/2000 governed the pilot phase of the Gacaca countrywide, and conducted 751 Gacaca courts of the Cell and 118 Gacaca courts of the Sector.
This test phase was characterised by case investigation and the categorisation of offences. The initial process was launched in two phases: The first phase began on 19th June 2002, and consisted of one Sector in each of the 12 provinces in Rwanda, while the second phase started on 25th November 2002, and consisted of one Sector in each of the 106 Districts in the country.
The pilot phase lasted through 18 months of observations after which time it was clear that some restructuring and modifications had to be made. The recommendations that resulted from the test phase formed part of the Organic Law 16/2004 that governs Gacaca courts today. Key changes in this law included a decrease in the number of Gacaca judges on the bench from 19 to 9 judges and 5 deputies.
Additionally, the four categories of accused persons was reduced to three. Categories two and three were merged and the penalties were also reduced. Under the new law, Gacaca courts were administered under three courts, the Gacaca court of the Cell, Sector and Sector Appeal, all of which had different functions.
There are 12,103 Gacaca courts country wide, 9,013 in the Gacaca court of the Cell, 1,545 in the Gacaca court of the Sector and 1,545 in the Gacaca court of Appeal.
To put the huge number of Gacaca courts in context, six years after the 1994 genocide, approximately 120,000 suspects remained in cramped prisons living in inhuman conditions. Between 1996 and 2006, the Rwandan criminal justice courts only prosecuted approximately 10,000 alleged perpetrators.
At these rates, it would take 110 years to prosecute those in prison alone. Adapting a typical criminal justice system in Rwanda to deal with crimes of genocide would mean that the majority of the alleged perpetrators and their victims would die without ever being tried or receiving justice. It would be the worst case example in history of ‘justice delayed is justice denied.’
There was an urgent need for speed, of which the confession process was one of the most important element of Gacaca. Confessions were the only means that Gacaca courts could collect evidence against the accused persons and their accomplices.
The nature of the Rwandan genocide (crimes committed in groups and committed in full view of the majority) enabled those who wanted to come forward and confess to their crimes, as well as those they witnessed or were accomplices to, to provide vital evidence that was necessary for the prosecution team and Gacaca.
Like confessions or plea-bargaining in other jurisdictions, this technique speeded the trial process. Those who have confessed to genocide have benefited from not only having reduced sentences, but also serve half of the reduced sentence doing community service.
This is a further incentive to confess, which has also helped reduce the number of inmates in the over-crowded prisons.
The Gacaca process comes to an end in June 2010. As Denis Bikesha, Director of Training, Mobilisation and Sensitisation, National Gacaca Courts Services, was quoted saying in The New Times of 12th March, 2010, “By 30th September 2008, the Gacaca courts had tried 1,127,706 cases. Only 4,679 cases remained untried.” By June 2010, approximately 1.5 million cases will have been tried.
To have handled such a huge number of cases in such a short time is a historical feat unprecedented in jurisprudence and administration of justice.
The Gacaca process helped put the nature and gravity of crimes against humanity into context while also considering the historical, cultural and political context of the society in transition, as well as the willingness and ability of the state to act.
Transitional justice is unique in that it considers the specific circumstances of the state in transition, and allows the state to decide what best suits its situation, in relation to the objectives it sets out to achieve.
The ultimate benchmark of transitional justice is its very impermanency; it is a transition toward something better and longer lasting. Nonetheless, it is not a process that can be hurried, and it is also a process that involves compromise.
According to official figures as of December 2009, 1,461 cases remained to be concluded by the courts. To date 94,466 convicted suspects have participated in the in the community service program.
Post-genocide Rwanda was a state in transition, searching for ways to establish a stable and just society, while coming to terms with past atrocities. State institutions were in tatters and lacked the capacity and resources to ensure that perpetrators of genocide were brought to justice.
The Rwandan government’s decision to adopt and modify the use of traditional Gacaca courts was, in part, due to the failure of its efforts at criminal justice.
Given the enormity of the challenge, Rwanda had a fall-back position, which was Gacaca. Traditional Gacaca not only united the nation, but gave it a negotiated arrangement over a period spanning centuries that accommodated the diversity of its people and engendered justice for all.
Gacaca possessed a number of components which made it both feasible and appealing as a method of transitional justice, including its emphasis on reconciliation, its simplicity and less legalist nature, its speed, its participatory and inclusive element, as well as the fact that the process was rooted in Rwanda’s culture and was familiar to the people.
For peace and reconciliation to take hold in Rwanda, justice needed to be witnessed by the very people who experienced a lack thereof. Individual accountability was essential so that the guilt of some would not tarnish and shame the innocent.
By holding individuals responsible for their crimes, the Hutu as an “ethnic” group would not be held collectively responsible for crimes committed by only a proportion of group members. By this, the rule of law and human rights were observed.
While much remains to be accomplished, the challenge remains that the UN and other international efforts should measure up to the ideal of universal human rights. With this Graham Turnbull will have been vindicated.
Brig. Gen. Rusagara is the Defence Attaché at the Rwanda High Commision in London. The article is based on a paper delivered by the author in London on 27th April 2010 to the Law Society of England and Wales. The event was a memorial to Graham Turnbull, an English solicitor who was killed in February 1997, aged 37, while working as a human rights monitor on the United Nations Human Rights Mission in Rwanda.