After the 1994 Tutsi genocide in Rwanda, people in society desired to continue with their lives. But to do that, equilibrium had to be restored. This means that justice consonant with the atrocious acts is what normally many people call for.
It is understandable especially when they have lost their loved ones, let alone starting a new with fresh challenges. In this regard, they are those that were calling for retribution and those that call for restoration of people’s humanity. The responses seem contradictory to each other; however, they all aim at the same thing. They are all answers to the call for justice only that the approach is different.
These responses can be categorised as retributive and restorative and each goes with a theory known by the same names. Retributive theory may be seen as revengeful while restorative may seem as letting the perpetrators of genocide go scot-free. What does this mean? This means that punishment needs to be understood so that when it is applied, an end that builds a society is realised.
It is therefore, opined that punishment is justified when it aims at changing the mind of the perpetrator to accept responsibility and change the orientation with regard to how to live with other human beings.
What does the ‘retributivists’ what? They want punishment that is meant to be a kind of compensation to the offended. If one does evil to another, she or he must be subjected to another evil as a reward. It only respects punishment when it satisfies the victim’s desire for revenge or society’s angry feelings towards the criminal. Arguing in this line is Immanuel Kant and his unequivocal defenses of the principle of retaliation. He argues that punishment is to be inflicted in a manner equal to the offence.
"If the offence is murder; only capital punishment is justified to equalize it".
Immanuel Kant here concurs with the Hamurabi law; which postulates the dictum of Tit for Tat, or an eye for an eye. In other words if you kill somebody you must also be killed.
While on the other hand restorative justice is a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the after math of an offence and its future implication.
Restorative justice is sensitive to context and thus to a variety of situations. It is not limited to individual level but is applicable to groups and at the institutional level. It is a process that aims at reparation and restoration between the offender and the offended. It however, requires social dialogue that includes wrong doers, sufferers of the wrong, and the community to which they belong and concrete demands of the needs of each for restoration.
Cutting across the two lines
It is understandable therefore that the Rwandan government had a complex justice issue to handle after the genocide.
Most people wanted retributive justice. The anger and desire for retribution felt by many people in Rwanda, especially the victims and their families, meant that the call for death penalty was wide spread. But this was a myopic demand and would not have even served the purpose of those who demanded it either. The argument for death penalty through the retributive justice begs the question. For example, is death sufficient retribution? Given the genocide, one must consider whether there is not equality of unthinkable arbitrariness in advocating for death penalty as the retributively just punishment.
Why death should killing a perpetrator of genocide before a firing squad for example, be said to be equivalent to the slow and painful death of victims of genocide in Rwanda? Does it real meet the requirement of retributive justice when one thinks of the brutal and savage character of the Interahamwe murderers in Rwanda?
The only appropriate justice would be applying equally savage methods of execution for the murder. However this would be ‘true retributive justice’ is prohibited by our societal moral restraints.
"For there to be an equivalence, the death penalty would have to punish a criminal who had been warned of the date on which he/she would be inflicted a horrible death. The victim would from that moment, be confined and left on the mercy of the person who will inflict a horrible death on him for months. Such a monster is not encountered in private life", Albert Camasa remarked.
Rwanda scores highly in restorative justice
As for the government of Rwanda, the question was to deliver some measure of justice for the victims as well as the perpetrators. Restorative justice as an African view of justice is aimed at healing the breaches, redressing of imbalance and the restoration of broken relationships.
Through restorative justice in general and Gacaca courts in particular, the Rwandan government has managed to rehabilitate both the victims and perpetrators. The perpetrators of the genocide have been given chance to reintegrate into the community that they injured through their offences. Gacaca like any other forms of indigenous justice in Africa perfectly applied informal procedures in punishing perpetrators. Through respected village/ community leaders known as Inyangamugayo, it gathered all parties that were involved in the crimes and worked to mediate a solution where the offender was given reparation and the offended given some form of compensation. Gacaca courts thus, managed to prudently create a neutral ground that reconciles the two parties.
The courts (Gacaca) have managed to create a hybrid of restorative and retributive justice. It has applied ‘some degree’ of retributive justice where it was necessary and restorative justice where it so demanded. Because of the levels of responsibility, the two types had to be used.
The society is now going on, reconciling and children are being given chance to grow up without hatred. No wonder other foreign societies have come to Rwanda to learn how it works. This reformation however, cannot be as spontaneous as may be desired. It is a process and ultimately, the hate attitude will end.