By The Rwandan Lawyer
Gacaca justice is a socio-political process, firmly enshrined in a procedure whose legal aspects are essential, and must now venture to resolve an equation whose terms are complicated and sometimes even contradictory. The Rwandan people, who have witnessed offences which constitute genocide offences and crimes against humanity, and who have, at least in part, also participated in the commission of those offences, must now give evidence, confess, and sit in justice over themselves, as a result of a written law
Justice delayed is justice denied – in any judicial system. But it becomes even more poignant when that justice has to hear distressing genocide litigation. In an attempt to deal with the huge challenge posed by the judicial backlog in 1994 genocide matters, a backlog that no established national could have resolved given the scope of the tragedy, Rwanda opted for a “participative” justice system by bringing in the Gacaca Courts, a traditional system for resolving local disputes in public meetings. Those in political power, who sought to use the criminal law as an education tool, decided to seek their inspiration from the traditional Gacaca system and create a judicial system that was to be based on both written and customary law. That is how the “repackaged” Gacaca Courts, which were now to be used as a means of resolving genocide related litigation, came into being.
The present article succinctly assesses the challenges which impeded the achievement of objectives the Rwandan state was expecting to realize by” judicializing” those traditional way of dispute resolution.
1.1. Judges exposed to corruption
In general, corruption was on the increase, particularly since 2007, when the number of panels was increased and the proliferation of legal tools for the Inyangamugayo, who must meet targets in terms of results and number of disposals. As the national authorities remind them regularly of the need to speed up the Gacaca process, many of the Inyangamugayo have, for the past two years, been hearing cases at least twice a week. They give their time free of charge and often have to try very complicated cases in circumstances that are becoming increasingly difficult. They are caught between the people’s weariness and fear, negotiations between defendants and witnesses about pleas and evidence and the political desire to end this whole process as quickly as possible. In accepting bribes, the upright judges become living proof of how difficult, nay impossible it is to resist enticement when one dispenses justice to the Rwandan people in their complex society, a society racked with traumatic experiences, fear and suspicion. “What I wanted to say is this, there are people who are afraid of Gacaca justice. These trials cause fear because those who are in a financially strong position will be accused and brought before the Gacaca Court, even if they have never done anything. All you need to do is just check: those against whom charges were brought after August, were never accused during the preliminary investigatory stage. It is obvious that the very purpose of the Gacaca has been misappropriated. Today, over 80% of the people here are afraid. Anyone who has the means tries to get away…What this Inyangamugayo has to say illustrates how the people mistrust a Gacaca process that is unable to protect the citizen from arbitrary legal proceedings, or to ensure that the fundamental right to a fair trial will be upheld. The extreme poverty amongst the vast majority of the participants in the Gacaca process, the lack of time and the judiciary’s dependence on the executive all explain why inducements are being offered. During a workshop on the fight against corruption and injustice organised by the Office of the Ombudsman in Kigali on 3 July 2007, representatives for the Office stated in public that corruption amongst the Inyangamugayo during Gacaca hearings was a genuine problem to which the Office was extremely alert and that a request for further investigation had been sent to the Minister of Justice. The establishment of the truth, which is an absolute precondition for the fight against impunity, can no longer be pursued when those who are directly involved in it can trade in their words, their silence and their evidence. The lack of any effective reparation scheme for the victims is another stumbling block to the legal process in its entirety and explains in part why the victims who escaped are now trading in their silence and their safety. The population often questions the credibility of some of the court decisions which appear to reflect neither the judicial nor the historical truth. Ultimately, it is the very attempt at reconciliation within the Rwandan society that is put at risk. If the Gacaca process is not to wholly abandon its primary purposes of the search for the truth on the 1994 genocide, the end to impunity and the achievement of national reconciliation, it is vital that those who are in charge of the process take the necessary measures to identify the corruption and prosecute its perpetrators systematically. It is not only the hearings and decisions in the courts that should be protected from any attempt at interference with the course of justice, the Inyangamugayo too must adopt a sort of moral code that will enable them not to yield to corruption and ensure that the perpetrators of criminal offences are indeed convicted and that the innocent are acquitted and rehabilitated within society.
1.2. Poor survivors easily bribed for discharging testimonies
The extreme poverty amongst the survivors, their isolation, their deep frustration when they are confronted with the lack of compensation can be read and heard in the interviews carried out by the PRI observers. The main reason why the survivors accept corruption is their extreme poverty, something they never cease to bring to the public attention. They know it and they admit to it. Some add that it doesn’t stop them from giving evidence for the prosecution and to expose the perpetrators’ crimes. Even survivors use corruption, by contradicting themselves deliberately in their evidence (the evidence given during the investigatory stage and that given later to the court)”. The extreme poverty in which a great number of survivors live encourages the use of bribes. And defendants exploit this situation by “buying” their victims’ silence. For their part, the victims express their disappointment and their bewilderment when they are confronted with some of the political decisions in respect of the Gacaca process (such as the introduction of the TIG for Category 2 defendants) and thus use corruption as a sort of compensation or a way of ensuring their own safety. “There are those who benefit from the survivors’ misery. Where a survivor survives by carrying out small daily jobs for the very person who harmed him, he can not afford to become a witness against that person, because that would put his job at risk and then he wouldn’t have anything to eat anymore. It is all because of the poverty. If he provides work and you then fail to come to his rescue, he’ll let you know you are in trouble. So, you decide to hang on to your job, you suffer in silence, just in order to survive”. Corruption, which the survivors admit to using, is one way of responding to the lack of real reparation, for victims cannot look forward to any positive outcome to the process and so they “take what they can get”. The only way to put an end to the disappointment and the practices which, all considered, only serve to perpetuate impunity and thwart the establishment of the truth, would be to acknowledge the victims and introduce a compensation scheme, however modest.
2. Speed at the expense of quality and the truth
We have been able to show to what extent the political insistence on a speedy conclusion to the current litigation has adversely affected the quality of the court decisions, fostered non- 1. Speed at the expense of quality and the truth? We have been able to show to what extent the political insistence on a speedy conclusion to the current litigation has adversely affected the quality of the court decisions, fostered non- compliance with procedural rules and encouraged corruption, and if this goes unchecked, it may well discredit a process which is intended to help Rwandans to achieve reconciliation. We have also analysed the difficulties facing the when they seek to collect live evidence which they need to test and compare in hearings in which all parties participate so that they can found their decisions correctly. There are instances of judges giving their decision before all the witnesses have arrived in court. Another consequence is that the cases are not properly tried. The court gives its decision within the time limits. It gives its decision before the hearing has been closed. For example, when it is alleged that so and so is an accomplice whereas for the sake of closing the trial, the hearing only deals with the main perpetrator so, I can’t but think that this case has not been dealt with properly.” Survivors, Inyangamugayo and defendants all agree that the accelerated procedure has had a negative impact on the quality of the court decisions. Those decisions may well no longer reflect the guilt or innocence of the defendants or the historical truth and they certainly fail to meet the survivors’ expectations. During a consultation meeting organised by the National Commission of Human Rights in Kigali on 18 December 2007, the Commission’s representatives, who cover the whole country, underlined the fact that the accelerated trials have caused a degree of slackness amongst the Inyangamugayo, who no longer take the time to consider the facts in the case before them before they come to a decision. “The accelerated trials put a great strain on the Inyangamugayo because they have to hear many defendants. So they take hasty decisions and do not always apply the law.” So the work grows more and more difficult for the judges. They finish late, have to deal with a great number of cases in a single day and therefore can’t always pay proper attention to the details, the inconsistencies or the inaccuracies contained in the statements. Two meetings every week constitutes quite a workload for the population and often the witnesses are not heard for the sake of gaining time.
Fresh accusations cause a feeling of insecurity amongst the population As said earlier in this report, our studies show that the faster trials and the greater number of panels have led to fresh accusations being brought in the Gacaca Courts against people who had not been previously identified during the preliminary investigatory stage or reported before by possible co-perpetrators or accomplices.According to one interviewee: “There are Inyangamugayo who conspire with genocide survivors: they fabricate charges against a person with whom they have a dispute, even when no charge had ever been brought against that person during the preliminary investigation stage”.187 We will mention two examples of the extent to which Gacaca justice can be distracted from its judicial purpose and become a tool for revenge, for sorting out private disagreements. The first case concerns a person who had never been the subject of any criminal charge during the information collection stage. Someone was unable to accept that another candidate had been appointed to given an important position and used the Gacaca Court to get his own back. In one of the Western districts, a person who was well known for having carried out important duties at Cell and District levels from 1994 until August 2007, held a position within the District Committee for Community Development. He had competed for this position with the chairman of a District association of survivors. Disappointed and angry, this chairman then told other people that his rival “wasn’t going to get away with it”. Less than two months after having taken up his new duties, Nicolas was summonsed before the Sector Gacaca Court and received a custodial sentence of 17 years. Upon appeal this was increased to 19 years. Our investigators observed that the chairman in question had also begun to talk Sector survivors into giving evidence against the defendant at his retrial and told them that if they refused, their Health Service cards (issued by the Fonds d’Assistance aux Rescapés du Génocide, the FARG) would be withdrawn. No evidence was ever collected against this person during the preliminary investigation stage and no charges were brought against him at the time. The second case is a perfect example of how the trial process itself can be perverted. We are not here to throw doubt on a court decision, but this case concerns a person who was convicted at the end of his trial and then sentenced to 19 years imprisonment upon appeal. This case was widely discussed in the newspapers and triggered a great number of articles in the press highlighting how the Gacaca process was being misused to serve private purposes. Everyone knows how the defendant was brought before the Gacaca court after he had accused an Inyangamugayo. One of the judges on the panel that tried him was the very judge with whom he was in conflict. The defendant applied for that judge to recuse himself, but his application was rejected. The Gacaca Appeal Court hearing190 took place on 4, 11 and 18 August 2007 but although the defence evidence was heard, it was not considered, whereas the only prosecution witness, who had given evidence at a trial in the national court, had not even been summonsed earlier to appear before the Gacaca Court. These two cases are perfect illustrations of the extent to which private disagreements may interfere with the trial process and used as a revenge tool or a means to settle private disputes within a justice system that on occasions gives the population cause for fear and distrust. Quite a few of those who were interviewed said that they feel they can’t be sure that they won’t be falsely accused and summonsed to the Gacaca Court on genocide charges or for crimes against humanity. Fresh accusations, which have never been mentioned during the preliminary investigatory stage are often the reason why defendants go on the run. They are advised to fight the accusation, but when they do so, they are sent to prison.I mean that there are several people who are afraid of the Gacaca. They are afraid because these days, anyone who has a bit of money may well be accused before the Gacaca Court, even if that person has never done anything wrong. When this sort of accusation is then checked, it turns out that those persons who have been accused since August, had not been accused before during the preliminary investigatory stage. Whatever the case may be, the real purpose of the Gacaca Courts has been usurped.” Fresh accusations are also being made during trials, even at appeal level, by prosecution witnesses or victims against people against whom no charges had been brought during the earlier preliminary investigatory stage. It also needs to be said that these new accusations may be the result of the survivors’ unhappiness. On occasions that unhappiness may have been fostered by outsiders, such as the leaders of victims associations or the local police. Fresh accusations may also be brought by witnesses who received information belatedly and who, having heard about an ongoing trial, come to court to bring new accusations. The Service National des Juridictions Gacaca recommends that such accusations be dealt with by the judges who are hearing the case if the charges fall within their competence. The desire to end the Gacaca trials as quickly as possible is the reason why these new accusations are not investigated and tried independently by the Cell Gacaca Courts, unless the accusations have been made at Appeal Courts level. Such a hurried approach, solely based on the need to dispose of cases “quickly”, means there is a high risk of miscarriages of justice. The feeling of insecurity this causes amongst the population can be seen in the sharp increase in new accusations which have often more to do with private disagreements and sometimes nothing with any involvement in genocide offences. The reality is that these days, many people live in the fear of being falsely accused for they will be unable to defend themselves if this happens, because they lack either the money or the time. There is a very real risk that the Gacaca Courts are being used as a tool for other purposes and those who are in charge would do well to heed the many warnings that have been sounded by human rights organisations and the concern expressed by the civic society that the process may be drifting away from its primary purpose.
4. Undue haste when settling the genocide litigation
Genocide litigation takes time. The Inyangamugayo, who have been entrusted with the unenviable task of trying the perpetrators of the genocide, must to have enough time to listen to and test all the evidence, including the live witness evidence, so that a person’s guilt or innocence can be decided calmly and in the absence of harassment. There is no time bar to genocide crimes. The litigation is far from having been completed, despite the official announcement that the Gacaca Courts are to cease their activities very soon. The political decision to accelerate the hearings in an attempt to end them within the next few months has aggravated the number of errors and abnormalities in the Inyangamugayo ‘s management of the genocide litigation: lack of time has led to a tendency to dispense with some witness evidence and full hearings at which all parties are present. It would also appear that it has exacerbated corruption amongst the various actors in the Gacaca procedure. Genocide litigation is unlike any other litigation. The Inyangamugayo, who are not professional judges and who must assist in resolving this terrible conflict, need to have sufficient time to collect all the available witness evidence, ensure that all parties are heard at the full hearing, make any further enquiries which might help them in deciding the innocence or guilt of those who stand accused before them. Even in a conventional justice system, this would inevitably require time, and it is perhaps worth remembering that “if speed is necessary [in court], overhasty decisions are a great evil”. Despite a strong desire to uncover the truth as quickly as possible, one must allow for the fact that a proper examination cases, and in particular serious or very complex cases, takes time. (More) time is perhaps the beginning of the answer to the errors and imperfections of the Gacaca process. More time for obtaining and testing evidence, more time for remedying the current deficiencies as identified in this report: the population’s reluctance to give evidence, the tendency to ignore defence evidence, corruption amongst the various actors in the Gacaca process. This has become even more important in the light of the growing number of application for case reviews and the fresh accusations that are being brought now, despite the imminent end to the Gacaca process. In that respect, the message from the SNJG’s Executive Secretary to the effect that the current Gacaca Bill provides for a transfer of Gacaca proceedings to the national courts doesn’t entirely accord with earlier declarations that the genocide related backlog in these courts must be cleared. Consequently, if the concerns and the fears amongst the population and recorded in this report are to be addressed, it would be necessary to set up an independent court which would decide on these new accusations and applications for case reviews.
5.Public participation evaporating
In another ominous sign for gacaca courts, public participation in these proceedings is on the decline. Penal Reform International has reported that although attendance at gacaca court proceedings has remained high (likely in part due to the fact that absence is punishable by law), participation has markedly decreased since the proceedings began. Avocats Sans Frontières, a Belgian human rights NGO, seconded this observation, noting Public Participation Evaporating In another ominous sign for gacaca courts, public participation in these proceedings is on the decline. Penal Reform International has reported that although attendance at gacaca court proceedings has remained high (likely in part due to the fact that absence is punishable by law), participation has markedly decreased since the proceedings began. Avocats Sans Frontières, a Belgian human rights NGO, seconded this observation, noting that “attendees, often numerous, only participated minimally in the proceedings.” From this, Human Rights Watch has concluded that gacaca courts “were supposed to draw their legitimacy from popular participation, but many Rwandans did not trust them and boycotted the sessions.” As one goal of the gacaca courts is to create among the citizenry an established truth of what occurred during the genocide, this marked decline in public participation bodes poorly for the effectiveness of this justice strategy. The reasons for the decline in public participation are varied. As noted above, these include the fear of violence against participants, and the perception that gacaca court judges are corrupt. In addition, tens of thousands of gacaca court judges have been accused of participating themselves in crimes during the genocide; no doubt the suspected culpability of those intended to sit in judgment has discouraged or intimidated potential witnesses.
With Rwandan citizens increasingly detached from the process of rendering justice in gacaca courts, the country seems close to a dangerous abandonment by would-be participants of the goals of the gacaca courts process. If this continues, many survivors will not testify about their experiences, and perpetrators may not be convicted of all the crimes they committed. As Penal Reform International concludes, “a meaningful participation of the population is the only way to know the truth about the genocide intimately and also to give full meaning to a process where the final objective is to lead to the reconciliation of Rwandans.” In the absence of meaningful public participation in the gacaca proceedings, it will also prove impossible to establish a historical record of the genocide, conduct fair trials, or impart to survivors and victims that justice has been done.
6.Failure to Provide Reconciliation
Another of the gacaca courts’ goals, namely societal reconciliation, is proving elusive as well. In particular, the refusal of the gacaca courts to investigate crimes committed by Rwandan Patriotic Army (RPA) forces (who were led by Rwanda’s current president Paul Kagame) against Hutu civilians, or reprisal attacks after the genocide, have led many Hutus to question the stated goal of reconciliation. Instead of healing the rift between Hutus and Tutsis, the operation of the gacaca courts is threatening to reinforce it by affirming group personas of victim and perpetrator, innocent and guilty. In part, it is the gacaca courts’ structure, which pits the population against the perpetrators, that makes them unlikely to be able to effect societal reconciliation. Even traditional criminal trials, which by their adversarial nature focus on determining individual guilt rather than establishing a comprehensive historical truth, focus on retribution and deterrence at the expense of reconciliation. If ordinary criminal prosecutions do not constitute a justice strategy conducive to reconciliation, gacaca court trials, which are administered by minimally-trained civilians without significant organization or legal rules, are even less likely to do so. Even the official explanation by the Rwandan government of the reconciliatory effect of the gacaca courts fails to convince, reading more like a chance for participatory popular punishment, rather than an opportunity to bring together perpetrators, victims, and survivors. In one official document, the government has explained: The Gacaca Courts system will allow the population of the same Cell, the same Sector to work together in order to judge those who have participated in the genocide, identify the victims and rehabilitate the innocents. The Gacaca Courts system will thus become the basis of collaboration and unity To the extent, however, that gacaca court proceedings assign collective guilt to Hutus by ignoring crimes committed by the RPA, and permit primarily Tutsi survivors to stand in judgment of primarily Hutu perpetrators, gacaca courts will hinder reconciliation within the country. As William Schabas has noted, “rather than resolve the outstanding cases … the initial gacaca [court] hearings appear to have opened a Pandora’s box.”
7.No Room for Criticism
Given these concerns, the absence of political space for criticism of the gacaca courts is disconcerting. When a member of Rwanda’s senate misspoke in response to a legal question about the powers of the gacaca courts, his statement was made out to be “a scandalous attack on Gacaca courts.” Three commissions of inquiry were opened, and the senator faced severe pressure to resign from office. Because of incidents like this, many Rwandans have been too intimidated to challenge gacaca courts. The Rwandan government has itself undermined its policy of national unity, at times having accused those who have spoken out against gacaca courts of harbouring a “genocidal ideology.” One local government official, who accused Rwandans that failed to attend gacaca court proceedings of having “genocide and ethnic ideologies,” threatened that their continuing failure to attend would be “seriously punished.” Illustratively, the citizens were undertaking a boycott of the local gacaca court based on allegations that the judges had been soliciting bribes from criminal defendants. Human rights groups have also been forced to suspend their operations, sometimes permanently, after questioning aspects of the gacaca court process. Human Rights Watch has noted that “as high-level [Rwandan government] officials focused on ‘genocidal ideology’ in speeches and ceremonies, Rwandan and international NGOs tailored their activities to avoid confrontation with authorities. Human rights organizations … avoided taking stands likely to draw official ire.” Unfortunately, this government crackdown on criticism has served to silence those best positioned to speak frankly about the gacaca process. Ordinary citizens have suffered from the government’s conflation of criticism regarding gacaca courts and disloyalty to the state, as well, and sadly there are signs that this climate of intolerance for criticism may be undermining the very participation upon which the legitimacy of the gacaca courts depends. As such, gacaca courts have not led to the sort of “democratic dialogue” between the governed and the government that they might otherwise have fostered.
Torn between the need to reconcile a deeply divided population and the duty, both moral and legal, to punish those who sought to eradicate an entire people, Rwanda’s attempt at combining criminal justice and community reconciliation might have provided a “third way” for societies in transition. As it has been implemented, however, the gacaca court system — fraught with corruption and violence, and insulated from much-needed change by a government that brooks no criticism — is quickly proving that in seeking to achieve both justice and reconciliation, the gacaca courts may very well achieve neither. Sadly, the net effect of the gacaca courts on the development of open discussion in Rwanda has been nil to negative; not only has their operation not resulted in a free dialogue between the government and the population, they instead have provided another basis for the government to accuse critics and dissenters of possessing a “divisive ideology.” So long as this intolerance for criticism remains, the public disaffection with the gacaca courts will result not in needed policy shifts, but instead in decreasing participation and abandonment of the noble goals that the gacaca courts set out to accomplish. Unfortunately, the establishment of the gacaca court system may foreclose the possibility of other transitional justice institutions, such as a truth commission, that could help the country to achieve reconciliation. Ultimately, then, the gacaca courts likely will be unable to achieve their stated goals of psychologically rebuilding Rwanda, establishing a historical record of the genocide, avoiding impunity, showing that justice is being done, and reintegrating hundreds of thousands of perpetrators into their communities without provoking retributive violence. By themselves, the gacaca courts today seem to be offering only popular punishment — and “popular” only in the sense that it is carried out by members of the population, not in that it enjoys broad approval. Yet the gacaca courts are a reality, and the Rwandan government seems unlikely to significantly alter their operation, even in the face of obvious deficiencies. If Rwanda is to break the cycle of violence and vengeance that has plagued it since independence, it must find a new way to achieve reconciliation between perpetrators and victims who must live side by side in a densely-populated territory. If the current relative peace is to be sustained, the government must accept that the impartial rule of law, and not draconian treatment of policy critics, can best prevent the escalation of grievance into violence. If the goals of justice and reconciliation are not met, Rwandans will live daily with the risk that another tragic collective bloodletting may follow. establishing a historical record of the genocide, avoiding impunity, showing that justice is being done, and reintegrating hundreds of thousands of perpetrators into their communities without provoking retributive violence. By themselves, the gacaca courts today seem to be offering only popular punishment — and “popular” only in the sense that it is carried out by members of the population, not in that it enjoys broad approval. Yet the gacaca courts are a reality, and the Rwandan government seems unlikely to significantly alter their operation, even in the face of obvious deficiencies. If Rwanda is to break the cycle of violence and vengeance that has plagued it since independence, it must find a new way to achieve reconciliation between perpetrators and victims who must live side by side in a densely-populated territory. If the current relative peace is to be sustained, the government must accept that the impartial rule of law, and not draconian treatment of policy critics, can best prevent the escalation of grievance into violence. If the goals of justice and reconciliation are not met, Rwandans will live daily with the risk that another tragic collective bloodletting may follow.