By The Rwandan Lawyer
Introduction
When we talk of trials of genocide committed against Tutsis, we implicitly involve Hutus who were judged and sentenced for years of jail. Obviously, it is understandable because the victims were generally Tutsi relatives of those who had attacked the country in 1990 and will win the war after 4 years of struggle. However, given the given the abuses to which the judges will indulge, some honest Tutsi will refuse to be false informers and will be punished.what prompted these valiant men to transcend ethnic lines and remain intransigent willy-nilly? These lines succinctly tackle that rare reality.
1.Facts
Safari is Tutsi and some of his brothers left to join the RPF rebellion and the neighborhood is aware of it because these young people are no longer visible in the Kiyovu neighborhood of the poor. Besides, his little brother will have played a big role in the release of some victims who were staying at the Sainte FamilleParish because he lives in the locality, he would show them the most discreet paths.
In his hiding place, he was with other Tutsis, including an old man who gave him his will asking him to pass it on to his children if he comes out alive in his hiding place, he was with other Tutsis, including an old man who gave him his will asking him to pass it on to his children if he comes out alive; Safari does the same. Suddenly, a bomb disperses the fugitives and the old man is afterwards killed while safari unscathed.
During, the gacaca trials,Safari who recovered his functions of lay president of Sainte Famille Parish and having espoused a hutu wife is called upon to testify against hutu who killed people in their area. He revealed what he knew but he refused to witness against innocent accused and this triggered the anger of some extremists who start scrutinizing him and found out that he cannot play their game as long as his wife is a hutu and that his serving catholic church whose role in the genocide is evident according to them.
They seize the occasion to exploit the testament he received from the deceased old man and ask him to explain the circumstances of his death putting aside the fact that he was killed later when the fugitive had been dispersed by the bombs.He is sentenced to 17 years of jail and to 19 years on appeal.
K.S is a tutsi inhabitant of Bumbogo in rural Kigali now district of Gasabo in Kigali city. During the trial of Kamuhanda Jean de Dieu who was minister in the government appointed after the crash of the plane of President Habyarimana Juvenal,the ministry of justice invited him to be part of witnesses who were testifying at the ICTR. He replied that he is a Christian and that he did not know that man and he had nothing to testify on his case. The ministry agents told him that they were aware of that but he was better indicated because he is native of the same area with the accused and that this fact suffices to convince the judge and better still, they will deliver to him that he will say before the court. He categorically rejected the offer and went back home. During Gacaca trials of their region, he is astonishingly accused of having abetted Hutu criminals during genocide and he is condemned to 17 years of jail. His daughter we met told that the father was not judged for genocide facts given that he hided with other fugitive Tutsi and did notcommit any acts of complicity but he is really punished for having for having heard state secrets and did not accept the mission entrusted to him; that the imprisonment is less than what he should undergo for such a misconduct vis-à-vis the regime.
M….is a Tutsi genocide survivor and was in a Gacaca session which was enlisting accused of genocide in the Mutete sector and one false witness cited him among victims of a neighbor who was denounced. Asking for a word, he refuted all the statements of the witness and as a tangible proof he declared that the name of a victim allegedly killed belong to him and invited the court of avoid such people because they will serve to fool all the decisions expected from it. During the trial of Gacaca, M. is accused of having attended a meeting of Interahamwe militia which was planning killings in the area; that former liar whose testimony was refuted is among witnesses charging him with facts and he is sentenced to 10 years of jail. Illustrations are numerous, but these three suffice to reflect the forgotten phenomenon.
2.Analysis
This specific case of Tutsis who did not accept the instrumentalization of gacaca trials to repress all Hutus comprising even innocent people is another tangible evidence of the failure of this extrajudicial system. Indeed, opponents to gacaca feared that using gacaca courts—traditionally reserved for small civil disputes—would minimize the seriousness of the crimes. Some also questioned whether ordinary citizens, often uneducated and with no formal legal training, had the skills to manage the trials and to apply national laws correctly. Others worried that relatives and friends with close connections to the community might be unduly influenced and show partiality in their decisions, creating new conflicts and tensions.
Proponents of gacaca argued against these reservations and ultimately won. They emphasized that using gacaca for genocide crimes would not trivialize the crimes, but rather would force communities to deal with the crimes at the level where they happened and would help end impunity locally. They also argued that ordinary citizens could be trained to apply the law correctly and could receive assistance from lawyers where necessary. Some members said that carrying out the trials in public would reduce the risk of judges taking sides and would discourage community members from giving false testimony. In their thinking, the advantages of using gacaca to individualize guilt, to dispel the notion that all Hutu committed genocide, and to give ordinary Rwandans an active role in delivering justice for the genocide far outweighed any potential limitations.
However, many of shortcomings can be traced back to the single most significant compromise made in choosing to use gacaca to try genocide cases: the curtailment of the fair trial rights of the accused. Although these rights are guaranteed by both Rwandan and international law, the gacaca laws failed to put in place adequate safeguards to ensure that all accused persons appearing before the gacaca courts would receive a fair trial. The gacaca laws tried to strike a balance by protecting some rights, including the right to be presumed innocent until proven guilty; modifying others, such as the right to have adequate time to prepare a defense; and sacrificing others altogether, including the right to a lawyer. Dozens of cases mentioned in this report show how these due process shortcomings have directly contributed to flawed gacaca trials. The government argued that traditional fair trial rights were unnecessary because local community members—who witnessed the events of 1994 and knew what really happened— would participate in the trials and would step in to denounce false testimony by other community members or partiality by the judges. Contrary to these expectations, however, Rwandans who witnessed unfair or biased proceedings decided not to speak out because they were afraid of the potential repercussions (ranging from criminal prosecution to social ostracism) and instead passively participated in the gacaca process. Without active popular participation, trials were more easily manipulated and did not always reveal the truth about events in local communities.
Conclusion
Some brave people escaped from the ethnic basket and fearlessly fought injustice at their risks as it is the case for Karasira who is facing the criminal proceedings for having told the”truth”.And this case of Tutsi who rejected the common lie is an additional facts to multiple shortcomings and failures with genocide trials deserving to be loudly denounced: basic violations of the right to a fair trial and limitations on accused persons’ ability to effectively defend themselves; flawed decision-making (often caused by judges’ ties to the parties in a case or pre-conceived views of what happened during the genocide) leading to allegations of miscarriages of justice; cases based on what appeared to be trumped-up charges, linked, in some cases, to the government’s wish to silence critics (journalists, human rights activists, and public officials) or to disputes between neighbors and even relatives; judges’ or officials’ intimidation of defense witnesses; corruption of judges to obtain the desired verdict; and other serious procedural irregularities.
