The Tension Between Justice and Reconciliation in Rwanda Politics, Human Rights, Due Process...

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The Tension between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due

Process and the Role of the Gacaca Courts in Dealing with the GenocideAuthor(s): Jeremy SarkinSource: Journal of African Law, Vol. 45, No. 2 (2001), pp. 143-172Published by: Cambridge University Press on behalf of the School of Oriental and AfricanStudiesStable URL: http://www.jstor.org/stable/3558953

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Journal ofAfricanLaw, 45, 2 (2001), 143-172 ? School of Oriental and AfricanStudies. Printed in the United Kingdom.THE TENSION BETWEEN JUSTICE AND

RECONCILIATION IN RWANDA: POLITICS,HUMAN RIGHTS, DUE PROCESS AND THE ROLEOF THE GACACA COURTS IN DEALING WITHTHE GENOCIDE1

JEREMYSARKIN*INTRODUCTION

How a society deals with its past has a major determining influence on whetherthat society will achieve long-term peace and stability. The critical question forsuch a state is whether or not to prosecute and punish those responsible for pastgross human rights abuses. The objectives of policies to deal with past humanrights abuses are often to prevent future human rights abuses and to repair thedamage that has been caused. The need of victims and the society as a wholeto heal from the wounds inflicted upon them by the former regime often has tobe balanced against the political reality in which the new government may havelimited political power, and in which it may have inherited a fragile state. Anew state has to be founded on a commitment to human rights and a dedicationto the rule of law. Often, however, the aims of achieving national reconciliation,building unity, reconstructing the institutions necessary for stable political andeconomic systems, and obtaining the resources necessary to fund the transitionare in conflict with dealing with the past. Criminal trials are one way in whichthe facts of past abuses may be established. The establishment of a truthcommission is another. However, either strategy in isolation can have direconsequences.These are important issues2 to consider in the context of Rwanda wherepossibly a million people died in the genocide of 1994. Many others have beenkilled subsequently, largely because the tragedy remains unresolved in terms oftruth,justice and reconciliation. A critical issue facing Rwanda is the present stateof the criminal justice system. Around 120,000 people accused of participating in

* Law Faculty,Universityof the WesternCape, South Africa.1 Paper deliveredat the Cape Town Holocaust Centre and the Institute for Justice and Re-conciliation Conference-Genocide and the Rwandan Experience:A South African-RwandanDialogue, Cape Town, February2001.2 See furtherJ. Sarkin,"The Trials and Tribulationsof South Africa'sTruth and ReconciliationCommission", (1996) 12 SouthAfrican ournalon HumanRights617; J. Sarkin, "The Truth andReconciliationCommissionin SouthAfrica",(1997) CommonwealthawBulletin 28;J. Sarkin,"TheDevelopmentof a Human Rights Culturein SouthAfrica",(1998) 20(3)HumanRightsQuarterly28;J. Sarkin,"The Necessity and Challengesof Establishinga Truth and ReconciliationCommissionin Rwanda", (1999) 21(3) HumanRightsQuarterly67;J. Sarkin, "Preconditionsand Processes forEstablishinga Truth and Reconciliation Commission in Rwanda: The Possible Interim Role ofGacaca Community Courts", (1999) LawDemocracyndDevelopment23; J. Sarkin, "TransitionalJusticeand the ProsecutionModel: The Experienceof Ethiopia", 1999)LawDemocracyndDevelopment253;J. Sarkin,"Promoting ustice, Truth and Reconciliation in TransitionalSocieties: EvaluatingRwanda'sApproachin the New Millennium of Using Community-BasedGacaca Tribunals to Dealwith the Past",(2000) 2(2)Internationalaw Forum 12;J. Sarkin,"DealingWith Past Human RightsAbusesand PromotingReconciliation n a Future Democratic Burma", December2000) Legal ssueson Burma1.


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144 Gacaca Courts n Rwanda [2001] J.A.L.the genocide are in detention.3 Some of them have been detained for up toseven years without trial in violation of international law.4 Very few trials havetaken place and Rwanda's legal system does not seem to have the capacity tomeet the need. One possibility being investigated is the involvement of localcommunities in the justice system.This article examines the situation in Rwanda since the genocide of 1994. Itexamines the political situation in the context of the country's human rightsrecord. This is critical as there are many different attitudes towards thegovernment's decision to follow the path of bringing perpetrators to justice atthe expense of other ideals. Relatively few genocide trials have taken place. Theproposed new gacacacourts are examined to determine whether the benefits ofusing these traditional courts to deal with genocide cases outweigh the potentialproblems. The legislation giving these courts powers to deal with genocide caseshas problematic provisions from a substantive and a procedural point of view.So many years have elapsed since the genocide of 1994 that the authoritiescannot, and should not, seek to prosecute all those accused of participating inthe slaughter. Perhaps only the architects and main organizers ought to beprosecuted. If prosecutions are seen as the panacea for Rwanda's ills, then thatcountry's problems are far from over and may in fact be exacerbated in thefuture. In conclusion, various suggestions are made for moving Rwanda positivelyforward to meet these challenges.

DEALING WITH THE PASTDealing with past injustices is a crucial test for a new democratic order. Facingthe tension between justice and peace, the transitional process entails tremendous

challenges.5 Countries in such a situation have to resolve similar problems: shouldthey punish human rights violations committed under the old order? Is anamnesty permissible and necessary in the interest of peace, reconciliation andunity? Does a society need an official account and acknowledgement of thewrongs of the past? Must the public sector be purged of supporters of the oldregime? How can the victims of human rights violations be assisted in some wayand have their dignity restored? To what extent should unjustly expropriatedproperty be restored? Knowing about the abuses of the past6 and acknowledgingthem seems to be the crucial issue in a transitional process.7 Ignoring historyleads to collective amnesia, which is not only unhealthy for the body politic, butis essentially an illusion-an unresolved past will inevitably return to haunt thecitizens.8 The establishment of a full official account of the past is increasinglyseen as an important element of a successful transition to democracy. New

3 R. Holloway, "RwandaUsing TraditionalJusticeto Clear Huge Backlogof Prisoners",AgenceFrance-Presse,3 November, 2000.4 AmnestyInternational,Rwanda:The Troubled CourseofJustice, ReportAFR 47/10/00, April2000.5 R. Siegel, "TransitionalJustice: Decade of Debate and Experience", 1998)20(2)HumanRightsQuarterly33.6 J. Sarkin,"The South African Constitutionas Memory and Promise" n C. Villa-Vicencio(ed.),TranscendingCenturyfInjustice, ape Town, 2000, 72.7 See for example M. Minow, BetweenVengeancendForgiveness:acingHistory fterGenocidendMassViolence,ambridge, 1998.8 J. Sarkin,"TheNecessityandChallengesof Establishing Truth and ReconciliationCommissionin Rwanda",(1999) 21(3)HumanRightsQuarterly67.


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Vol. 45, No. 2 Gacaca Courts n Rwanda 145democracies have various options in dealing with these issues.9 They make theirchoices according to the contexts of their transitions, taking into account theseriousness of the crimes committed and the resources available to deal withthese issues.

How DEMOCRACYCOMESTO BE ESTABLISHEDThere are three broad types of political transition from an authoritarian

regime to a democratic one:'l reform, compromise and overthrow."When reform is undertaken,12the old government plays a critical role in theshift to democracy as, initially at least, the opposition is weak and the oldgovernment determines the type and pace of change. Sometimes a group withinthe authoritarian regime steps forward and leads a movement towards endingthe old order and establishing democracy. In this scenario, the old forces stillretain control at some level even though they have allowed a democraticgovernment to come to power. This unequal distribution of power is a significantobstacle to exacting transitional justice, and the new government's power toimplement the human rights policy of its choice is limited. Because such atransformation may have occurred from within the authoritarian regime, theremay be a feeling among some that democracy is at the whim of the formerregime. Since these former leaders retain a lot of power, they have the ability,to a greater or lesser extent, to dictate what happens in the transitional process.An example of this is Chile where General Pinochet was able to enact legislationduring his tenure to ensure that he would not be prosecuted for human rightsabuses after a civilian government came to power. Additionally, the militaryretained a great deal of power even after the handover of power to the civiliangovernment. There was, therefore, always the fear of another coupd'etatif themilitary was provoked. As a result, nothing was done to deal with the grosshuman rights violations allegedly perpetrated by Pinochet for two decades. Onlynow, as a result of the process in Spain and the United Kingdom, the state inChile is feeling secure enough to bring Pinochet to book. Where the reformmodel of change applies, an amnesty is likely, few prosecutions if any are likelyto occur, and the past will largely be ignored.

In countries where change is the result of compromise,'3 the existing regimeand opposing forces are equally matched and cannot make the transition todemocracy without each other.'4 Such was the case in South Africa. This modeltherefore entails democratization by the combined actions of the former regimeand the opposition forces. In compromising itself out of power, the authoritarianregime will generally negotiate protection for itself in terms of amnesties or

9 See furtherCarter Center of Emory University. 1992. InvestigatingAbuses and IntroducingSafeguards n the DemocratizationProcess.Conference convened6-7 July, 1992.ConferenceReportSeries 61.10See generallyG. O'Donnell, P. Guillermo,C. Phillipe,and C. Schmitter(eds.),TransitionsfromAuthoritarianule:TentativeonclusionsboutUncertainemocracies,altimore, 1987; G. O'Donnell, C.Philippe,and L. Whitehead(eds.),Transitionsfromuthoritarianule:Prospectsforemocracy,altimore,1986.11N. Kritz(ed.),Transitionalustice:HowEmergingemocracieseckon ithFormer egimes,Washington,D.C., 1995.12As in Chile, Hungaryand Spain.13As in El Salvador,Namibia, Nicaragua, Uruguay and Zimbabwe.14See S. Huntington,"The Third Wave:Democratization n the Late TwentiethCentury" n N.Kritz (ed.),above, n. 11, at 69.


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146 Gacaca Courts n Rwanda [2001] J.A.L.extract a promise by the new government not to investigate or prosecutecertain past crimes. Therefore, the human rights policies adopted by successorgovernments in such a situation generally involve institutional measures aimedat deterring future human rights abuses15rather than investigating and punishingpast abuses.'6 The critical determinant is the level of power retained by the oldorder.17If the forces of the old order are strong enough, they may simply waitfor the new government to make a mistake or push its power too far (especiallywhen it comes to seeking prosecutions). Former leaders may be able to stateoutright that they will not tolerate being held accountable for human rightsabuses committed during their reign. If this happens, the new government willhave to make a choice between dealing with the past or succumbing to thepressure exerted by the former regime to deal only cosmetically with the humanrights abuses of the past. If it does not deal with the past, its legitimacy couldbe undermined. If it takes on the challenge of forcing the former regime toaccount for the past, it runs the risk of becoming susceptible to overthrow.Rwanda is an example of the overthrow model. Being overthrown18 is thefate of a regime that has refused to reform: opposition forces become strongerand finally topple the old order. In the "overthrow" model, the dominant forcesare staunchly opposed to reform and over time the opposition gains significantpolitical strength while the authoritarian regime loses strength. Democratizationoccurs after the authoritarian government collapses or is overthrown and theopposition comes to power. Under these circumstances, the former regime haslost not only power but legitimacy as well. Consequently, the transitionalgovernment comes to power with no significant political constraints inhibitingimplementation of a legitimate human rights policy. In such a case, the newgovernment has the widest discretion to decide how it should deal with the past,including unfettered power to bring the perpetrators of human rights abuses tojustice. The choice that Rwanda has made to deal with the past isjustice-prosecuting those accused of involvement in the genocide is the focalpoint of government policy. The government believes that there is very littlereason not to pursue this option, as it perceives few constraints on this courseof action. However, as will be shown below, there are vital reasons why choosingone model-justice in this case-to the exclusion of the principles of truth andreconciliation will have dire consequences in the long term.

TRUTH,JUSTICEAND RECONCILIATIONBroadly speaking, options available to a new democratic society include (1)criminal sanctions; (2) non-criminal sanctions; and (3) the rehabilitation of the

society. Usually, the path chosen takes into account three goals: truth, justice,

15 N. Roht-Arriaza, "CombatingImpunity: Some Thoughts on the Way Forward",(1996) 59Law & Contemporayroblems3 and R. Teitel, "Transitional urisprudence:The Role of Law inPoliticalTransformation", 1997) 106 TaleLawJournal 009.16 J. Zalaquett, "ConfrontingHuman Rights Violations Committed by Former Governments:PrinciplesApplicableand PoliticalConstraints" n AspennstituteusticeandSociety rogramtateCrimes:PunishmentrPardon,Maryland, 1989.17 S. Huntington, "The ThirdWaveDemocratization n the Late TwentiethCentury" n N. Kritz(ed.),above, n. 11, at 65.18As in Argentina,East Germany,Persia (now Iran)and the Philippines.


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and reconciliation. The balance19 struck between these goals is determined to alarge extent by the type of transition, and thus the limits of the power of thenew regime to make unfettered choices. Rwanda's new government has almostno fetters on its discretion, although the choices made will certainly have long-term ramifications.

Truth is knowing about and officially acknowledging past human rightsabuse. This official acknowledgement can open a dialogue in the state betweenindividuals, and the various groups in the society.20 Facilitating an open andhonest dialogue can effect a catharsis, and prevents collective amnesia which isnot only unhealthy for the body politic, but also essentially an illusion-anunresolved past inevitably returns to haunt a society in transition.21Justice is a critical aspect of ensuring respect for human rights and the ruleof law-it is necessary to prevent future violations. Justice deters similar acts inthe future and promotes peace and human rights while consolidating the newgovernment as one bound by the rule of law, and therefore distinctly differentto the regime of the past. The degree of justice possible depends on-amongother things-historical, political, military and socio-economic factors. It is shapedby the nature of the past, the obstacles of the present, and the future needs ofthe society.22Prosecutions may be ineffective in fragile democracies where regimesmay not be able to survive the destabilizing effects of politically charged trials.Many countries emerging from dictatorship are polarized and unstable, and maybe further fractured by prosecutions of those from the previous regime. This iscertainly true in Rwanda.

The basic argument in support of prosecutions is that trials are necessary inorder to bring violators of human rights to justice and to deter future repression.23By holding past violators criminally liable, the transition from an oppressive toa just society is emphatically marked, and the new government is consolidated.Those who oppose prosecution as a means of dealing with the past argue thatsuch trials serve not as a remedy for, but rather as a perpetuation of, humanrights abuse; due process is rarely guaranteed, expostfactolaws are often appliedand, as a result, the trials are nothing more than victor's justice.24 Those whooppose trials often advocate granting amnesty to former power elites, therebyquelling the possibility of an uprising that would threaten the new regime.25This, it is argued, does more to consolidate the new regime than having trials.Generally speaking, the answer as to whether to prosecute or not must lie

19See D. Pankhurst,"Issues of Justice and Reconciliation in Complex Political Emergencies:ConceptualisingReconciliation,Justice and Peace", (1999) 20(1) ThirdWorldQuarterly39.20 M. CherifBassiouni,"SearchingorPeace andAchievingJustice:The Need forAccountability",(1996) 59 Law& Contemporaryroblems, 24.21 J. Sarkin,"The Trials and Tribulationsof the Truth and ReconciliationCommissionin SouthAfrica",(1996) 12 SouthAfrican ournal n HumanRights 17.22 R. Goldstone, "Justiceas a Tool for Peace-Making:Truth Commissions and InternationalCriminalTribunals", 1996) 28 NewYorkUniversityournal fInternationalaw& Politics 85, 486.23 See D. Orentlicher,"SettlingAccounts:The Duty to ProsecuteHuman Rights Violations of aPriorRegime", (1991) 100 TaleLawJournal 537, 2542.24 See M. Mutua, "NeverAgain: Questioning the Yugoslav and Rwanda Tribunals",(1997) 11Templenternationalnd ComparativeawJournal 167, who argues that the Nuremberg Tribunal"representedhe calculatedrevengeof the victors [and]had little to do withjustice per se", at 185.25 See also the example of South Africawhere the draftersof the interim constitutionrecognizedthe primacyof reconciliationand reconstruction o the pursuitof national unity and accepted theprincipleof amnestyas a necessary ool for thispurpose.SeeJ. Sarkin,"The Trialsand Tribulationsof the Truth and ReconciliationCommission in South Africa", (1996) 12 SouthAfrican ournalonHumanRights 17.

Vol. 45, No. 2 Gacaca Courts n Rwanda 147


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148 Gacaca Courts n Rwanda [2001] J.A.L.somewhere in between the two sides of the debate. The goal has to be to findan appropriate balance between denouncing the abuses committed by the formerregime, consolidating the new regime, and achieving reconciliation. At the sametime it must be remembered that there is no uniform nor magic formula fordeciding when prosecutions are appropriate. There are unique considerationsin every country's transition. However, there are some general considerationsthat should be taken into account in every determination of whether to prosecute.These include: (1) the nature of the transition and whether the former regimeis still capable of an effective uprising; (2) the type and extent of crimes; (3) theapplicability of old and new laws; (4) the judiciary's capacity to guarantee fairtrials; (5) the public perception of the intention behind the trials and the effectthe trials could have on reconciliation; (6) the cost and resource question inrelation to other priorities; and (7) the effect of trials on investor confidence.However, even if the prosecution route is followed, it does not always lead topositive results for a transitional society. Experiences with war crimes trials, forexample, show that it is difficult to meet the hopes and expectations of thevictims by these means. Victims are mostly not involved in the trials, and areoften denied the cathartic experience of a process that focuses on them as victims.In isolation, trials allow for recognition of only a single version of events. Whiletrials can help lead to truth, the criminal justice system must adhere to principlesof due process and the assignment of individual, not collective, responsibility.Trials often limit truth discovery. In addition, new judges that have beenappointed may not be willing to hand down decisions that are too politicallycontroversial. The standard of proof for conviction in a criminal trial is higherthan that in a civil trial. Guilty verdicts are therefore far from certain. Anacquittal can have a devastating effect on victims and the society in general. Itmust also be remembered that the aim of a trial is to attain a guilty verdict, notto assist victims in their recovery process. There could, therefore, be majordisadvantages in using the criminal justice system in a transitional society fromthe viewpoint of victims of human rights abuses. Issues such as resources andthe state of the criminal justice system will play a critical role in determiningthe number of trials. The state might not have the available human and financialresources to pursue or carry out these prosecutions. If the requirement toprosecute everyone who has committed atrocities is met, it may place impossibledemands on the judiciary. However, criminal punishment is a very effectivemeans of preventing future repression.26 Knowling that there is a good chanceof being prosecuted will deter many who may be tempted to commit humanrights abuses.These are some of the reasons prompting some states to grant amnesty toperpetrators of gross human rights abuses, or not to prosecute those who havecommitted atrocities. However, the context in which trials occur is crucial, asare the way they are seen. Fears about victor's justice, real or imagined, canhave a long-term negative effect on relationships and reconciliation. Prosecutions,while often having positive results, can also have very negative consequencesand can completely undermine a country's long-term stability. In the Rwandancontext, Professor Mahmoud Mamdani has stated:

26 See for exampleJ. Malamud-Goti,"TransitionalGovernment n the Breach:Why PunishStateCriminals?", 1990) 12 HumanRightsQuarterly, 12.


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Vol. 45, No. 2 Gacaca Courts n Rwanda 149"After1994, the Tutsiwantjustice above all else, and the Hutu democracyaboveall else. The minorityfears democracy.The majorityfearsjustice. The minorityfears that democracyis a maskfor finishingan unfinishedgenocide. The majorityfears the demand forjustice is a minority ploy to usurp power forever."27

This notion of victor's justice is implicit in the comments of Mark Drumbl, whowrites about his work as a defence lawyer in Rwanda. He notes that:"thosepresentlygoverningRwandansocietyand insistingupon the genocide trialsare, for the most part, RPF28Tutsi who have a differentbackground than theTutsi victimsof the genocide.To this end, those promulgating he genocide trialsare, for the most part, not the same people whose families were killedduringthegenocide."29

Thus, different motivations for prosecuting those in detention are believed. Forexample, people in prison say they do not know why they are there.30 Somestate that they have been detained because of their former jobs or jobs thatrelatives held.

The Organization of African Unity's (OAU) report of a seven-memberinternational panel of eminent persons, assembled to investigate the Genocidein Rwanda, in this regard finds that:"The tragictruth,as one observerputs it, is that, 'The governmentseems caughtin a vicious cycle. It is perceived by the Hutu masses as an occupying forcemaintainingpower throughthe use of arrestand intimidation.The jails, filled withpeople who are the sons, brothers,cousins,nephews,or fathers of most RwandanHutu, are a persistent reminder of this power. But from the government'sperspective,without the arrestsand the consequentintimidation, he Hutu massesmay revolt againstthe minority government.'"31

The perception of at least some of those awaiting trial, and their families, is thatthe process is a Tutsi version of victor's justice.32 This notion of victor's justiceis alluded to by the Special Representative of the Commission on Human Rightson the situation of human rights in Rwanda, Michel Moussalli,33 who reportedon 4 August, 2000, that:"thevictors went for a maximalistapproachtojustice, arrestingnotjust the leaders,planners, instigatorsand main implementers,but everybody suspected of anyparticipation n the genocideof Tutsis or the massacresof moderate Hutus."34

27 M. Mamdani, When Does a Settler Become a Native? Reflections of the Colonial Roots ofCitizenship in Equatorial and South Africa, Inaugural Lecture, University of Cape Town, NewSeries,No. 208, May 1998, 11.28 Rwandan PatrioticFront.29M. Drumbl, "Ruleof Law Amid Lawlessness:Counsellingthe Accusedin Rwanda'sDomesticGenocide Trials",(Summer 1998) Columbia umanRightsLaw Review 46, 567.30 See AmnestyInternational,RwandaUnfair Trials: ustice Denied, April 1997 (AIIndex:AFR47/08/978).31 318-page report of the seven-member nternationalpanel, assembledby the OrganizationofAfricanUnity (OAU 2000) ch. 18.60.32 S. Vandeginste, "Justice,Reconciliation and Reparation after Genocide and Crimes AgainstHumanity:The Proposed Establishmentof Popular Gacaca Tribunals in Rwanda", Paper to theAll-Africa Conference on Principles of Conflict Resolution and Reconciliation, Addis Ababa,November 1999.33The mandate of the Special Representative,as stipulated n Commission resolution 1997/66of 16 April, 1997, is "to make recommendationson how to improve the human rightssituation inRwanda,to facilitatethe creationand effectivefunctioningof an independentnational human rightscommissionin Rwanda, and further to make recommendations on situations in which technicalassistance o the Governmentof Rwanda in the field of human rights may be appropriate."34Fifty-fifth ession Item 116(c)of the provisionalagenda human rights questions:human rightssituationsand reportsof special rapporteurs nd representatives-Rwanda reportof 4 August,2000.


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Gacaca Courts n RwandaThe consequence of this is that "many Rwandans outside and inside Rwanda(and not only those in prison) do not sufficiently recognize the state as theirs,and do not sufficiently recognize the justice rendered as theirs".35 The OAUreport notes:

"many Hutu remain alienated from and intimidated by this regime. Thegovernment,then, does not trustthe majorityof its citizens,and they do not trusttheir government.The viciouscycle continues:The governmentbelieves it has nochoice but to maintain its strict control. Most Hutu seem to believe either thatHutu Power will rise up one day or that simple population facts will eventuallyreturn them to power."The report further notes:

"Hutu perceive the current situation as massive political and ethnic oppression,since tens of thousands of their families are directly affected by the detentions,despite the fact that they insist on their innocence and in any event should beconsidered nnocent untilproven guilty.37 . . Hutu radicalswho still claimto speakfor Hutu in Rwanda refuse to acknowledgeeven that there was a genocide:a civilwar in which both sides committedatrocities,yes;Tutsi-inflictedgenocide,in whichHutu were the victims,yes; perhaps even genocide by both sides. But denial ofthe one-sided genocide of April to July 1994 remains an unshakeablearticle oftheir faith.Accordingly, here is no need for collectiveatonementor for individualacknowledgementof culpability."38

Regardless of whether this is true or not, it is believed by at least a part of thepopulation. Drumbl reports that:"the overwhelmingmajorityof the prisonerswe interviewed do not believe theydid anythingwrong. They believe they are incarceratedsimplybecause their sidelost the war. Should their side win and topple the Governmentof National Unity,they will be freed. Their imprisonment,so goes the thinking,has nothing to dowith any wrongdoing,but only with the vengeance of the new group which nowholds the reins of power."39

This view has even been articulated before the International Criminal Tribunalfor Rwanda. During the trial of Georges Rutaganda, Belgian defence lawyerLuc de Temmerman stated:"It is not Hutus who are guiltyof this so-calledgenocide. We are convinced therewas no genocide.It wasa situationof masskillings n a state of warwhereeveryonewas killingtheir enemies ... There are a million people dead, but who are they?They are 800,000 Hutus and 200,000 Tutsis. Everyone was killingbut the realvictims are the Hutus. So they'vegot this so-calledgenocide all wrong."40

This sense, or perception, is exacerbated by Hutu exclusion from many aspectsof Rwandan society. The United Nations High Commissioner for Refugeesnotes:"Over the years, the current government demonstrated a lack of interest inestablishinga broadpoliticalpowerbaseand in processes eadingto power-sharing.Instead,gradualexclusion of Hutu opponents from the top politicallevels, as well

35 Vandeginste, above, n. 32.36OAU 2000 ch.23.64. See B. Crossette, ReportSaysU.S. and OthersAllowedRwandaGenocide",TheNewYork imes, July, 2000, and TheWashingtonost,"WestTurned Backon RwandaGenocide, OAU Report Says",8July, 2000.37 OAU 2000 ch. 18.59.38 OAU 2000 ch. 23.61.39 Drumbl, above, n. 29, at 546, 547.40 See "Rwanda Genocide is a Lie, Court Told", Electronic Mail and Guardianttp://web.sn.apc.org/wmail/issues/961004.

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Vol. 45, No. 2 Gacaca Courts n Rwanda 151as in the administrationand in the judiciary, added to the current conflictpotential."41

According to Prunier, at the end of 1996, 15 of the 22 cabinet directors, 16 of19 director generals, six of the 11 prefects, 80 per cent of burgomasters and 95per cent of all soldiers, gendarmes and police officers were Tutsi.42 TheInternational Panel of Eminent Personalities of the OAU report in 2000 noted:

"Some have argued that from the very first, real power in the government hasconsistentlybeen monopolized by a smallgroup of Tutsi, even though Hutu haveformallybeen well represented. n 1999, for example, while the Cabinet contained14Hutu and 12 Tutsi, of 18 ministerialgeneral-secretariesdentified,14were RPFTutsi; with only two exceptions, all the non-RPF ministers have RPF general-secretaries. Of the 12 districtprefects, nine were Tutsi, two Hutu; one positionwas vacant. Over 80 per cent of burgomastersare estimated to be Tutsi. Amongthe 14 officerscomprising he army and gendarmeriehigh command, only one isHutu. The 'tutsization' of the judicial apparatus is also evident: the SupremeCouncilof theJudiciaryis mainly Tutsi;three of the four presidentsof the Courtsof Appeal and the majorityof the judges of the Tribunal of First Instance areTutsi. For the firsttime since the new governmenttook over, the President s nowTutsi as well."43While the state is still Tutsi-dominated, some Hutu individuals have been

brought in. This has, however, been undermined by the fact that several leadingpoliticians-nearly exclusively Hutu-have left or have been forced to leave thegovernment, the National Assembly, senior administration posts and the justicesystem. In this regard the United States Department of State in its 2000 RwandaCountry Report reported that the:

"largelyTutsi Rwandan Patriotic Front (RPF), which took power following thecivil war and genocide of 1994, is the principalpolitical force and controls theGovernment of National Unity ... [and] ... Some Hutu organizations andindividualsaccuse the Governmentof favoringTutsis,particularlyEnglish-speakingTutsis,ingovernmentemployment,admission oprofessional chooling,recruitmentinto or promotionwithin the army, and other matters. Some organizationsalsocomplainthatin hiring,thegovernment avorsEnglish-speaking utsis over French-speakingTutsis."44In addition, many Hutu leaders have left or been forced out of high profilepositions. This has added to the perception of Hutu exclusion. These includeFautin Twagiramungu (Hutu Prime Minister, who resigned and fled in 1995),Seth Sendashonga (RPF Hutu Minister of the Interior, who resigned in 1995and was assassinated in Nairobi in 1997), Augustin Cyiza (Hutu President of theCour de Cassation,who resigned under pressure in 1998), Faustin Nteziryayo(Hutu Minister of Justice, who resigned and fled in January 1999) and AlypeNkundiyaremye (Hutu President of the Council of State, who fled inJune 1999)and the Hutu President of Rwanda, Pasteur Bizimungu, who resigned in 2000.In fact it has been reported that in 2000:

41 United Nations High Commissionerfor Refugees Background Paper on the Human RightsSituationin Rwanda, UNHCR Centre for Documentation and Research, Geneva,January 2000.See further European Platform for Conflict Prevention and Transformation, Rwanda CountrySurvey, 1999.42 G. Prunier, TheRwandaCrisis.History fa Genocide,ew York, 1997, 369.43 OAU 2000 ch. 23.44 United States Department of State in its 2000 CountryReports on Human Rights PracticesReleased by the Bureau of Democracy, Human Rights, and Labor in February2001.


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"Not all bodes well on the unity front, however. Eight Hutus have resignedfromgovernmentposts duringthe past year over differenceswith Tutsi leadership...some observerssee danger sins in a largely Tutsi-rungovernment in a countrywith a huge Hutu majority."A report of the UN High Commissioner for Refugees reported inJanuary 2000that:

"Aftera series of governmentreshuffles,ministers'resignationor flightabroad,thelegitimacyof the Tutsi minority-ledgovernmentis fragileand underminedby thecontinuingdefections of its Hutu members. Hutus are discouragedfrom voicingtheir opinions in the politicalarena fearingretaliation."46Michel Moussalli also reported in August 2000 that:

"some tensions, concerns and disquiet have appeared in recent times in thepopulation at large, as reported to the Special Representative by civil societyorganizationsand other stakeholders.They are reportedlydue to the insufficientlyexplained personnel changes at or near the top of the political hierarchy,some apparentlyisolated and unexplained cases of assassinationsof high-levelofficials .. ."47

Exclusion from land and enforced relocation to villages is another majorsource of tension.48 While there has been growth in the economy, infrastructurerestored and about four million people resettled, major problems exist aroundthe question of access to land and where people live.49 Enormous populationgrowth is exacerbating the problem.50 Hutus, for the most part, have, since thegenocide, been completely marginalized both politically and economically. Asrefugees return at the rate of about 500 a week, they find others on the landthey used to occupy. Fear of being denounced as a genocide perpetrator stopsmany from reclaiming their land. This is an issue that needs to be resolved as:

"the numbers of people forced out of farming and becoming impoverishedarelikelyto pose a social and ethnic threat.Rwanda'shistoryshould have shown thatan ethnicization of economic activities is somethingto be avoided if the countrywants to evolve to a more peacefulfuture."5'The UN High Commissioner for Refugees has also commented that:

"Hutu returnees continued to be subject to a high level of control and thereintegrationprocess seems to be proceeding very slowly. In such circumstancesof increasedsegregation,there seems little hope of ethnic reconciliation and anintegratedsociety."52

As far as the villagization process is concerned, Michel Moussalli has commentedthat the policy of collective resettlements known as imidugudu, r villagization:"has alarmed many of Rwanda's important partners. On 12 July, 1999, theEuropeanUnion Council of Ministersurged Rwanda to ensure 'carefulplanning,prior impact studies and pilot projects in order to avoid villagization that brings

45J. Lampman,"WomenLeadin Effort o RebuildRwanda",ChristiancienceMonitor, 5February,2001.46 See above, n. 41.47 See above, n. 34.48 Land has been a source of conflict for many years in Rwanda and is believed to have been afactorleadingto the genocide. SeeJ. Sarkin,"TheNecessity and Challengesof Establishinga Truthand ReconciliationCommissionin Rwanda",(1999) 21(3)HumanRightsQuarterly67.49 Editorial:"Rwanda:No EasyAnswers",TheEastAfricanNairobi),8 March, 2000.50 S. Van Hoyweghen, "The Urgency of Land and AgrarianReform in Rwanda", (July 1999),98 (392)African ffairs 53.51 See above, n. 50, at 353, 367.52 See above, n. 41.

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abouthuman rightsviolations'.This reflectsthe two chief concernsof donors:first,that villagization may be coercive, and second, that it could further undermineRwanda's agriculturalproductivityand food security.There is some evidence onboth counts. In December 1998, 41 per cent of those questionedin a governmentsurvey of Gisenyi and Ruhengeri said that they wanted to remain in their ownhomes insteadof moving to villages."53Without examining the effect of this process, Human Rights Watch on 16February, 2001, noted:

"Since late 1996, the Rwandan government has ordered tens of thousands ofpersonsto leave theirhomes and takeup residencein officially-designatedvillages'known as imidugudu. In some cases homeowners have been obliged to destroytheirown homes beforemoving to the imidugudu; n otherslandholdershave beenobliged to cede their fields to serve as building sites. Persons unwillingto moveand those critical of the policy have been subject to harassment,imprisonment,and fines by government officials. Established without any form of popularconsultationor act of law, thispolicyof ruralresettlementdecreeda drasticchangein the wayof lifeof approximately 4 per cent of the populationwho hadpreviouslylived in dispersed homesteads, near the fields they cultivated and where theypasturedtheir livestock. Households headed by women, children,and the elderlyappearto have sufferedmostfrom thispolicybecausethey are least able to providethe resourcesneeded to build new houses in the imidugudu.Thousandsof personswho once lived in solid homes surroundedby their fields now live in temporaryshelters made of leaves, wood, and bits of plastic. Many of them have to walkfurther each day to get to their fields, to fetch water or firewood, or to go toschool."54Another study on the villagization process conducted by a university in theNetherlands concluded that in regard to the villagization programme thegovernment "had hidden aims" and "its compulsory nature could contribute tolong term social tension".55The army has remained a nearly exclusively RPA and Tutsi bastion. Whilesome members of other groups have been included, there is little faith that thishas been done to any significant degree. Negative perceptions of the army havebeen aggravated by human rights violations at the hands of soldiers. The factthat free political activity is prohibited and that "no political party, other thanthe RPF, is allowed to conduct the usual political party activities, despite theirrepresentation in the National Assembly",56feeds doubts that are held about thedemocratic intentions of the government. According to one report, "local andinternational human rights organizations alleged that some Hutu residents,mostly boys and small business owners, disappeared from their homes or fromprisons".57These events can only further the notion of Hutu exclusion and thespecific targeting of Hutus by the government. Unless these issues are dealt with,and these perceptions laid to rest, the achievement of long-term peace will beimpossible. Long-term peace requires reconciliation; stability and growth dependson it.

53 See above, n. 34.54 See written statement submitted by Human Rights Watch to the Commission on HumanRightsFifty-seventh essionItem 10 of the provisionalagenda. E/CN.4/2001/NGO/30 16January,2001.55 See above, n.41.56 See above, n. 32.57The United StatesDepartmentof Statein its2000 CountryReportson HumanRightsPracticesReleased by the Bureau of Democracy, Human Rights, and Labor in February2001.

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154 Gacaca Courts n Rwanda [2001] J.A.L.New regimes often inherit societies fractured by oppressive regimes that haveutilized race, religion, ethnicity and other divisions to gain and maintain power.Populations subjected to "divide and rule" tactics, as was the case in colonial

Rwanda, are likely to remain divided and to continue to feel deep-seated fear,resentment and other negative emotions against other groups in that society.These are formidable obstacles to reconciliation in any country. Reconciliationis a long-term goal that requires deliberate, measured programmes and processes.Finding a way to achieve reconciliation is often at odds with the goals of achievingtruth and justice. For example, the pursuit of truth must sometimes come at theexpense of justice. Likewise, the pursuit of justice does not always promotereconciliation.58Dealing with the unique circumstances of each country's situationrequires balancing truth, justice and reconciliation to achieve the best result,given the relevant political, social, economic, demographic and other factors.Until now reconciliation in Rwanda has not been seen to be a major objectiveby the government. Comparing South Africa and Rwanda, Mahmoud Mamdanicomments that in South Africa the Truth and Reconciliation Commission:

"exemplifies he dilemmainvolved in the pursuitof reconciliationwithoutjustice,whereas Rwanda exemplifies the opposite: the pursuit of justice withoutreconciliation."59While it seemed the government of Rwanda was investigating the possibilityof a truth commission process in that country when it visited South Africa in1996 and again when it visited the South African Truth and ReconciliationCommission in 1997, it has now rejected the idea.60 On their visits to SouthAfrica, the Rwandans commented that reconciliation would be nice, but that

they preferred justice, and reconciliation could wait. In addition, the RwandanMinister of Transport commented "we don't need truth, we know who didwhat".61 The government of Rwanda believes that such a commission is not afeasible option at the present time for a number of reasons. One reason givenis that the process should begin at the local level to bring communities together.However, many of the reasons for the government's reluctance to have such aprocess now are predicated on political factors. It is only recently that"reconciliation" has entered the government's vocabulary. Even then, the contextin which it is brought up is usually that there can be no reconciliation withvictims unless there has been justice. However, a change in this attitude hasbeen described like this:"After iveyearsof refusing o talkof reconciliationuntiljustice is seen to be done,Rwandans have accepted that reconciliation must be a national goal in its ownright."62

58 See C. Nino, "The Duty to Punish Past Abuses of Human Rights Put into Context: The Caseof Argentina", (1999) 109 TaleLawJournal2619, who argues that a categorical absolute ruledemanding the punishmentof human rightsabuses is not always conducive to remedying/endingsuch abuses.59M. Mamdani, "ReconciliationwithoutJustice", (November-December 1996) SouthernfriicanReviewfBooks-5.60W. Schabas, 'Justice, Democracy, and Impunity in Post-genocide Rwanda: Searching forSolutions to ImpossibleProblems", 1996) 7 Criminal awForum 23, 559.61 See D. Goodman, 'Justice Drowns in Political Quagmire",ElectronicMail and Guardian,1January, 1997, http://web.sn.apc.org/wmail/issues/970131.62 Report of Special RepresentativeMoussalli, Fifty-fifthsession Item 116(c) of the provisionalagenda human rights questions: human rights situations and reports of special rapporteursandrepresentatives eportof 4 August, 2000.


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Vol. 45, No. 2 Gacaca Courts n Rwanda 155The question, however, is whether this agenda has been provoked by internationalconcern or whether it is real in the sense of ensuring reconciliation for all-victimsand perpetrators alike. As far as mechanisms to foster reconciliation and a humanrights culture are concerned, Rwanda has established two commissions toassist with unity, reconciliation63 and human rights.64 However, the structure,appointment method and focus of these bodies may limit their efficacy.65Withoutdoubt, an independent process aimed at uncovering the truth and achievingnational reconciliation in Rwanda is necessary. A national independent truthcommission could analyse various versions of events and validate more than oneversion by accepting differing testimony and incorporating all versions into areport that becomes official history.66

HUMAN RIGHTS IN RWANDAThe government of Rwanda has done very well in re-establishing the structureof the state and its various institutions. At local and national level, administrative

organizations have been restored, the schooling system has swiftly been re-established, an entirely new communal law enforcement establishment has beenset up, the transport system has been repaired, and new roads are being built.67Various new institutions have been established such as the National HumanRights Commission. However, as far as the latter commission is concerned,Human Rights Watch reported that:

"The governmentproposedten candidatesfor the sevenpostson the Commission.The candidateswere then elected by the National Assembly.Of the seven elected,one, the commission'spresident,previouslyserved as head of a small humanrightsorganizationbased in Belgium and another headed a women's association inRwanda that did considerable work in human rights. The others came fromgovernmental posts or positions linked to the Rwandan Patriotic Front. Onecommissionerwas formerlya high rankingofficerin the Rwandan PatrioticArmyand served for sometimeas its liaison to the foreignpressbefore becoming editorof a semi-officialnewspaper."68

Human Rights Watch therefore states:"Itis too earlyto tell whetherthe Commissionwill functionindependentlyenoughto help improve the situation of human rights in Rwanda. Given the stronggovernmental inks of the majorityof its members,it may preferto work throughpersonalcontacts behind the scenes ratherthan through public criticismof abuses.While this may help resolve individualcases, it will do little towardsdevelopingreal respectfor human rightsin Rwanda."69

In the legal system some important legal reforms have been carried out. Essentialstructures (such as the Supreme Court and the Supreme Council of Magistrates)have been put in place and court buildings have been repaired. New judicial63 Thisbodybegan ts taskby investigatinghat reconciliations. SeeJ. Lampman, Tamingthe Desire orRevenge:AfricanNationsDrawon CulturalHeritageo Heal Wounds f Warand

RestoreSocialFabric",Christiancienceonitor,November, 999.64 The lawprovidingorthe NationalHumanRightsCommission aspassednJanuary1999and the commissioname ntobeingon 24 May,1999.65 See later, Human Rights Watch, "Protectors or Pretenders: Government Human RightsCommissions n Africa-Rwanda (2001).66 This will be examinedin more detail below.67 See above, n. 32.68 See above, n. 65.69 See above, n. 65.


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156 Gacaca Courts n Rwanda [2001] J.A.L.personnel have been trained and, by May 1999, 104 judges had been trainedand there were a total of 1,800 people in the judicial system.70However, in February 2001 the United States Department of State reportedthat the government's human rights record in 2000 remained poor and that it"continued to be responsible for numerous, serious abuses; however, there weresome improvements in a few areas". The army was accused of extra-judicialkillings. The report also noted that:

"securityforces beat suspects, and there were some reports of torture ... anongovernmentalorganization(NGO) credibly reportedthat beatingsat the timeof arrestare common, and some released detaineesreportedthat they had beentortured."71The OAU panel reported in July 2000:

"Filmfootage from Rwandan prisons in the firstyear or two after the genocideshows men crammedtogetherwith little sanitation in disgustingconditions,manyof them with open wounds andparalysed imbs,the resultsthey claimedof beatingsand tortureby RPF soldiers."7In this regard Michel Moussalli reported in 2000 that as far as detention in thecachotsare concerned, "scores showed the wounds of mistreatment"73 and theUN High Commissioner for Refugees reported that:

"During1998 more than 3,300 prisonersdied. Conditions n the cachots,the localdetention centers,are even worse. ... Cases of torture or ill-treatmentwere alsoreported, usuallyat the time of arrest and interrogation,duringdetention in thecachots and in the militarydetentioncenters."74Amnesty International in a 2000 report noted:

"Conditions n many prisonsand detentioncentres n Rwandastill constitutecruel,inhuman or degradingtreatment. Grossovercrowding,poor hygiene and medicalcare, and insufficient ood continue to cause widespreaddisease and thousandsofdeaths ... Many detainees n the cachotscommunaux,in militarydetentioncentresand in some brigades have been subjected to torture or other forms of ill-treatment-most commonly beatings.Beatings-usually inflictedduringarrest orin the initialperiod of detention-were consideredvirtually normal'by detaineesdue to theirfrequency .. In some cases, the torture or ill-treatmentwas so severethat detaineeshave died."75In its Resolution 1999/20, the UN Commission on Human Rights reiterated:"its concern at the conditions of detention in many communal detention centresand some prisonsin Rwanda, calls on the Government of Rwanda to continue inits efforts o ensurethatpersons n detentionare treated n a manner which respectstheir human rightsand emphasizesthe need for greaterattention and resourcesto be directed to this problem, and again urges the internationalcommunity toassistthe Government of Rwanda in this area."Obviously these are major human rights problems, but they also have majorpolitical and anti-reconciliation effects in Rwanda. It is believed by many that

70 D.Browne, HowBritainCanHelpBringJusticefterWorld's astestGenocide", he cotsman,14November,000.71The United StatesDepartmentf State in its 2000 CountryReportson HumanRightsPractices,eleased ytheBureau fDemocracy,HumanRights,andLabor n February001,USDepartmentf State2001.72 OAU2000ch.18.36.73 Reportof SpecialRepresentativeoussalli,eeabove,n.62.74See above, n.41.75 See above, n. 4.


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Gacaca Courts n Rwandathe government, by condoning or doing little to prevent these abuses, exacerbatesthe levels of bitterness and resentment in the general population by detainingalleged perpetrators of genocide in severely overcrowded and disease-infestedprisons.76While human rights abuses are reported by a variety of independentsources, a new trend as reported by the United States Department of State isthat:

"during he year,the Governmentbegan to provideto humanrightsorganizations,and even other governments,systematic replies and rebuttals to allegations ofhuman rightsabuses."THE GENOCIDERIALS OFAR

While the criminal justice system has improved dramatically since 1994, it isstill weak and the judiciary is still overwhelmed. The courts lack infrastructure,qualified personnel and funding. Due process rights have often been absent-inviolation of both international standards and Rwandan law. In this regard theOAU report notes:

"there can also be little doubt that much justice dished out, both formallyandinformally,could best be described as rough. Frankly,without condoning thissituation,it seems to us that many Tutsi would be inspired by an unquenchablethirst for vengeance and that many of them set out to wreakthat vengeance. It iscertain that great injusticewas inflicted on many innocent Hutu in these recentyears."77In this regard Drumbl, who worked as a defence lawyer in Rwanda, noted in1998 that they have tended towards the "haphazard and erratic" and "trappingsof due process, although increasing, still remain fleeting".78 The situation has,however, improved to some degree.79 It has, however, not been an issue highup on the agenda for improvement-it has been stated that financial and humanresource constraints do not permit this.80Trials did not begin in Rwanda until December 1996. The manner in whichthe trials have been conducted has raised questions about their fairness. Thecourt milieu's hostility to those on trial has been made apparent by the booingof defendants and applause for the prosecutors. In some cases trials have beenconcluded in as little as four hours.81Between 1996 and the end of 2000 about3,343 cases had been dealt with.82The death penalty was handed down in about20 per cent of cases. Life imprisonment was imposed in 32 per cent of cases,

76 In February2001, it was estimatedthat 120,000 detainees were being held captive in Rwandaeventhoughthedetentionsystemhadbeendesigned oronly30,000. Withsuchextremeovercrowding,it is not surprising hat detention conditions are poor. Problems include poor sanitation, lack ofsufficientfood and inadequatehealth care. Detainees have also been subjectto cruel and unusualpunishment, including rape, tortureof juveniles, and denial of food by RPA soldiers and prisonerguards. See the Report on the Situation of Human Rights in Rwanda, submittedby Mr ReneDegni-Sigu, Special Rapporteurof the Commissionof Human Rights (20/01/97) E/CN/1997/61.See further,AmnestyInternational,Rwanda: The Troubled CourseofJustice, Report AFR 47/10/00, April 2000.77 OAU 2000 ch. 18.2.78Drumbl, above, n. 29, at 546.79 See AmnestyInternational,Rwanda UnfairTrials: ustice Denied, April 1997 (AIIndex: AFR47/08/978).80Inadequatefinancial and human resources has been a major obstacle in the establishmentofan independentand impartial udiciary.81 See above, n. 60.82 See above, n. 57.

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158 Gacaca Courts n Rwanda [2001] J.A.L.and acquittals made up about 20 per cent of the total.83Part of the reason whyso few trials have been held is because of the small number of trained judges inRwanda. Many judges were killed during the genocide. However, the numberof judges involved in the genocide trials has continued to rise: as of August 2000,104 judges were appointed at the Specialized Chambers (versus 76 in November1998).84 However, there are other reasons for the slow pace of the trials.Absenteeism of judges, for example, remains important, and is a major cause ofdelayed hearings.85Michel Moussalli noted in August 2000 that "the overcrowding in Rwanda'sprisons is due primarily to the slowness of the justice system in processing casesand completing trials".86While the government of Rwanda blames the fact thatthere are few lawyers and limited resources, Attorneys without Borders in its1999 report, states that "there is clear progress and justice is at work, but justiceis non convincing (lajusticeneconvaincepas)".87The US Department of State notesthat:

"thejudiciaryis subjectto executive influence and also suffers rom inefficiency,alack of resources,and some corruption.There were occasional reportsof briberyof officials,rangingfrom clerksto judges. ... Severalmagistratesand prosecutorswere suspendedor dismissedon corruption charges during the year. There werereportsthat some magistrateswere removedfromofficefromMay through Augustfollowing'not guilty'verdictsof suspects alleged to have participated n the 1994genocide. There also were credible reportsthat a few magistrateswere removedfrom offices on false chargesof genocide."88As noted above, exclusion has characterized Rwanda. This has also occurredin the legal system. Thus, the refusal to incorporate some experienced Hutu

judges and prosecutors into the criminal justice system has removed trainedindividuals from the legal system who could have ensured that the system couldhave worked far better. Some Hutu lawyers have been arrested, assassinated orforced into exile. In this regard the OAU report notes:"Yet as in virtuallyall other sectors of Rwandanpublic life, thejustice systemwasdominated by Tutsi. Most of the new judges were Tutsi, as were most of theSupreme Council of the Judiciary and three of four presidentsof the court ofappeal. Six Hutu judges were suspendedin 1998 and later dismissed.Moreover,the independenceof the judicial system was called into question soon after thecourtsbegan to function,as militaryofficers,civilian officials and other influentialpeople did not hesitateto interferewith its operations."89

83 Seeabove,n. 4. Seefurther,US Departmentf State nwhich t is stated hat,accordingo a"local uman ights rganization,etweenJanuaryndSeptember000, 1,588personswere udged.Of the 585 personsudgedon genocide-relatedharges etween anuary ndMarch,58 receivedthe deathpenalty;124weresentencedo life in prison;248 receivedvariousprison erms;75receivedotherpenalties; nd 80 were acquitted.The vast majority f trialsmet internationalstandards."84 Avocats ansFrontiersusticepourTous au Rwanda.Rapport emestriel.er semestre 999,Bruxelles, igali, Septembre999)5.85 Seeabove,n.84, translatedy S. Vandeginste,Justice,ReconciliationndReparationfterGenocide ndCrimesAgainstHumanity: heProposed stablishmentfPopularGacacaTribunalsin Rwanda".Paperto the All-AfricaConference n Principles f ConflictResolution nd Re-conciliation,ddisAbaba,November 999.86 Reportof SpecialRepresentativeoussalli, bove,n.62.87 See above, n. 84.88 See above, n. 57.89 OAU 2000 ch. 18.38.


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Gacaca Courts n RwandaA problematic rendhas been to re-arrestafterdischarge.AmnestyInternationalnoted in April 2000:

"Thetrendtowardsre-arresting etaineeswhohavebeen acquittedcoulddiscouragesome of the judges and other officialswho have so far demonstratedgood faithand a willingnessto act fairly;in the current political climate in Rwanda, theacquittalof an individualaccused of genocide-even when there is a clear lack ofevidence-is a courageousdecisionand significantprogresshas been made in thisarea, as illustratedby the number of acquittals."90THE GACACA OURTS

The use of traditional gacaca courts has been adopted by the Rwandangovernment9l as a mechanism to ease the burden on the normal courts and toapply justice92 by assisting the legal system to deal with those in detentionawaiting trial. However:

"gacacameans differentthings to differentpeople. Some see it as a way to easeovercrowdingin the jails, some as a tool of reconciliation,some as a way ofestablishing he facts of genocide, and some as a way of punishingthe guilty."93The government gacacaproposal sees a wide-scale pyramid structure in terms ofwhich thousands of gacacatribunals, at village, region and provincial level, willbe created under a department within the Supreme Court. The governmentmodel sees gacaca tribunals at the lowest level of the pyramid, judging thoseaccused of Category 4 crimes (the least severe crimes) in terms of the 1996Rwandan genocide law. More serious crimes are dealt with at appropriate higherlevels of the pyramid.

Traditionally the gacacahad a dispute resolution focus. The name is derivedfrom the word for "lawn", referring to the fact that members of the gacaca siton the grass when listening to and considering matters before them. The processinvolves the community in dispute resolution, making it community-based. Itacts as a local healing and dispute resolution mechanism that is cheap andaccessible. In general, where these structures operate, people have some degreeof confidence in the system as they see respected community figures serving onthe gacacaand are able to observe proceedings in close proximity to where theylive. The gacaca, similar to nearly all systems of traditional law, is part of theculture. It is established upon principles of morality and reverence of life. Assuch it cannot be examined in a detached way, but has to be examined in thecontext of the wider society and the changes that have occurred since thegenocide in 1994. Rwandan society, families and family relationships havefundamentally changed as a result of the killings and large-scale populationmovements since that time. The way in which the gacacaare used, and the rolethese structures play has changed. People are now inclined to approach the

90 See above, n. 4.91 Preamble Draft Organic Law creating "GacacaJurisdictions" nd OrganizingProsecutionsofOffenses that Constitute the Crime of Genocide or Crimes against Humanity Committed between1 October, 1990 and 31 December, 1994, Draft Organic Law.92 In February2000, the RwandanParliamentunanimouslyenacted the law that established hegacaca ribunals.It was reportedthat theJustice MinisterJean de Dieu Mucyo had statedthat somehigh-ranking individuals such as ministers would be immune from prosecution by the gacacatribunals.See IntegratedRegional InformationNetworks of the UN Office for the Co-ordinationofHumanitarianAffairsIRIN Update 862 for the Great Lakes, 16 February,2000.93 Report of Special RepresentativeMoussalli,above, n. 62.

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Gacaca Courts n Rwandagacacaless frequently, preferring instead to use the state courts. In the past, thegacacaconsidered issues around marriage, divorce, succession, parental authority,injury, and land disputes. One of its major purposes was to re-establish order ina community.94 Because the gacacadid not previously deal with murder (ethnicallymotivated or otherwise) or various lesser crimes relevant to the genocide, changingtheir role so fundamentally could be unworkable.A conciliatory view of how the government of Rwanda is planning to usegacacacourts comes from Michel Moussalli:

"It is to the credit of the Rwandan authoritiesthat ... they do not hesitate toinnovate and to try new approacheswhen it appearsthat the one at hand is notworkingat all or not adequately.The currenteffort to institutegacacaurisdictionsalongside the conventional ones must be seen in this light. ... The SpecialRepresentativeapplauds he boldness of the gacacaproposal.Time and time againhe was told that 'justiceas it is practisedin the West is not working.We need tofind an alternative'.At the same time, he would point out, as many others havedone, that the gacacaplan is a major gamble. Furthermore,any Western countryof Rwanda's size facedwith a caseload of these proportionswould have enormousproblemsas well. If successful,gacaca ould break the deadlock.Equally, it couldcreate an entirelynew set of problems,as indicatedabove."95He does, however, note that:

"the survivorsof genocide are coming around. They have reservationsabout anyproposalthat couldfreeguiltygenocideperpetrators.But it has become increasinglylikelythat the only alternativewould be an amnesty,which would be unacceptableat present."Amnesty International has reported that:

"delegateswho visited Rwanda in late 1999 received both positive and negativereactions to the proposalsfrom Rwandese of variousbackgrounds.Many peopleexpresseda generalsense of hope and optimismfor the proposals.However, somefamiliesof victimsof the genocide expressed ears that thegacacaurisdictionswouldresult in excessivelylight sentences for those who may have committed terriblecrimes. Some of the accused,on the other hand, viewed the proposalsas a way oflegitimizingpopular retributionon those presumedto be guilty for the genocide.Both groups expressedfears that the gacacaurisdictionswould be used as a wayof settling personalscores,ratherthan extractingthe truth or delivering ustice."9At least one group, the Rally for the Return of Refugees and Democracy inRwanda (RDR), has rejected the gacacacourts.97They released a press statementclaiming "the proposed courts give the accusers all the power to themselvesprosecute the accused".98While the government claims that there is widespreadsupport for the process, the following testimonial needs to be borne in mind. Itwas not made in the context of the gacaca courts but still has major relevancefor Rwanda today. A member of a human rights organization in Rwanda madethe statement:

"But who, in today's Rwanda, would dare to say no? Those who protest aresoon indirectlythreatened.During commune assemblymeetings, for instance, aburgomastersometimesdenounces the behaviour of someone who disagrees, by

94 See F. Reyntjens, (December 1990)40 Politique fricaine1.95 Reportof SpecialRepresentativeoussalli, bove,n.62.96 See above, n. 4.97 "RDR RejectsSpecialJurisdictions n Rwanda", 2 October, 2000, Africa News Service.98 See above, n. 97.

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sayingthat he 'thinks ike the previousregime'.This comes close to an accusationof complicityin genocide. Therefore,people preferto remain silent."99

THE GACACA AWANDCOURTSVarious problems with the gacacalaw need to be addressed to safeguard theprocess and avoid long-term negative consequences. Of major significance is theview of Alison des Forges, a well-known researcher and commentator on Rwandawho has stated:

"The fairness of the proceedings will vary enormously, because they will beessentiallypolitical rather than judicial proceedings ... The result in any onecommunitywill be determinedby the local balance of power."1'?This view, whether correct or not, indicates a perceived political motive andfocus of the process. Steps should therefore be taken to mitigate the perceptionof possible political bias in the findings of these courts.Firstly, the time-period during which crimes committed will fall within thegacaca urisdiction could be contested terrain, as they will only deal with crimescommitted between October 1990 and December 1994. This alone is likely tomake large segments of society consider the process to be illegitimate. Manybelieve that the history of discrimination and brutality perpetrated against themduring colonial times as well as during other periods of Rwanda's history arethe root causes of the events of 1994. If only the events that occurred between1990 and 1994 are examined, people would regard this as prejudicially narrowbecause the process would focus on the Hutu as perpetrators and fail to takeinto account the long history of human rights abuses in Rwanda in which bothHutus and Tutsis have been perpetrators and victims. There is a danger thegacaca court process may be used for settling personal scores, political issues,issues of land and property, and family issues. The OAU report notes that:

"Intoo many cases, false accusationswere made againstthose whose only 'crime'was inhabiting and or propertyor working n a post that returningTutsi refugeescoveted. In other instances, accusers were known to be seeking retributionforsome current or past wrong, real or imagined,but unconnected to the genocide.In some cases, authoritieswrongly charged political rivals with genocide andimprisonedthem withoutcause."lThe gacacalaw determines that crimes to be examined by these courts are:"(a) crimes of genocide or crimes against humanity as defined by the December9, 1948 conventionon thepreventionandsuppressionof the crime of genocidein the August 12, 1949 Geneva convention, relating to the protection of legalentitiesduringwar and its additionalprotocolsand the November 26, 1968conventionon theimprescriptibilityf warcrimesandcrimesagainsthumanity.(b) or offenses,to which the penal code appliesand accordingto the accusationsof the public prosecutorsoffice or testimoniesfor the prosecution,that thedefendant admits were committed with an intention to exterminate an ethnicgroup."

These are extremely complex issues even for legally trained individuals.102 Thesejudges will have to understand and apply the Genocide Convention, the Geneva99 OAU 2000 ch. 18.48.'00Reported in Pittsburghost-Gazette,4 September, 2000.101OAU 2000 ch. 18.39. See also Drumbl, above, n. 29, at 546, 607.102 See later.

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162 Gacaca Courts n Rwanda [2001] J.A.L.Conventions and protocols, crimes against humanity as well as other conventionsand principles of international law. They will also have to apply domestic offencesto the principles relating to a very specific form of intent. Even to lawyers, thequestion of the forming of intent in the legal sense is not a simple matter.Additionally, some of the gacaca ribunals will have powers to sentence individualsto life imprisonment. This is obviously problematic because although criminalsanctions will be handed down, those doing the adjudication are not legallytrained, and no procedural or other rights will be guaranteed. SpecialRepresentative Moussalli also notes that:

"it might be difficult for an accused person to defend himself in a large publicmeeting. And there is alwaysthe danger that people will try to disculpate(clear)themselvesby accusingothers."'03In terms of planning, logistics, training and uniformity, more than 250,000individuals will be involved as adjudicators.'04There cannot be consistency and

uniformity in the way that these courts function, understand or apply the law.Whether sufficient training can take place to enable these structures to functionfairly and properly and to dispense justice in a fair and impartial manner isunknown. There is no doubt that there will be enormous problems in setting upthese structures properly and in a very short time-period. It will be necessary toeducate those on the structures and the communities they are in about thesystem, its procedures and what rules it must apply. It is also necessary to educatethe community about the benefits of a process which is conducted with dignity,and what must be done to prevent preconceived notions and beliefs about peoplewho appear before these courts from undermining the work of the gacaca.

GACACAJUDGESWho is appointed to the gacaca courts and how they are appointed is very

important, since these judges will determine the decisions that emanate fromthat court. Appointment to the local gacacacourts will take place by election incommunities. However, mechanisms must be found to ensure that both Hutusand Tutsis are elected to sit on the gacaca ribunals to ensure that both communitiesfeel their interests are represented. The United Nations Basic Principles on theIndependence of the Judiciary,105while they are not binding principles of law,should be borne in mind here. A lack of adequate representation for eithergroup could be a violation of Principle 10 which states:

"... In the selection of judges, there shall be no discriminationagainst a personon the ground of race, colour,sex, religion,politicalor other opinion, national orsocial origin,property,birthor status,except that a requirement, hat a candidatefor judicial office must be a national of the country concerned, shall not beconsidereddiscriminatory."Already, Alison Des Forges has commented that the gacaca "outcome dependson balance of power in the area". In this regard the OAU notes:

103See above, n. 3.104 See above, n. 3.105 Basic Principleson the Independenceof theJudiciary, UN GAOR 40/146 of 13 December,1985.


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"Fears have also been expressedthat the proposed system may be used to settlepersonal scores through some form of collusion between defendants and localinhabitants,especially n ruralareas with large Hutu majorities."'06If those who appear before the courts see or believe that the outcome of ahearing is determined by the area in which the trial is heard, the process willlose credibility and legitimacy very quickly and be a source of tension andconflict for the future. The responsibility of sitting on a gacaca court will beconsiderable because judges will be subjected to political and psychologicalpressure,'07not only from the state but also from the community in which theylive. This pressure is already being brought to bear on the judges of the ordinarycourts and is likely to be more serious in the gacaca, in violation of Principle 2of the Basic Principles on the Independence of theJudiciaryl08 which states that:

"thejudiciary shall decide matters before them impartially,on the basis of factsand in accordance with the law, without any restrictions, mproper influences,inducements,pressures, hreatsor interferences,direct or indirect,fromany quarteror for any reason."

Another area of concern is related to expertise and competence. Judges willbe expected to understand complex legal issues, and they will be expected,without the benefit of legal training or legal argument, to distinguish betweengenuine and false testimonies. In addition, they will have to deal with theproblems caused by the delays in the matters coming to trial, and the poorquality of dockets and witness statements, where these exist. In this regardDrumbl states:

"Itmightverywell be that,overthe years, manypeople have difficultiesseparatingwhat they actuallysaw with what they heard or otherwisebecame acquaintedwiththrough hearsay. Given that hardly anyone is cross-examined and that, as timegoes by, many accusers become incapacitatedor die, there is no mechanism toensure the accuracyof their accusations.In the end, it is Rwanda as a whole whichloses out as historical acts become blurred."'09It is a matter of concern that untrained judges will be expected to hand downheavy sentences, including life imprisonment. Basic Principle 1010 states:

"personsselectedforjudicialofficeshallbe individualsof integrityand abilitywithappropriate rainingor qualificationsn law."These issues are important in the Rwandan context as there has been:

"considerabledebate and even controversy,especiallyabout the failure to providefor any professionaldefence for the accused, the expected lack of or insufficienttraining of the judges, the statutorydisqualificationof most of the literate andinfluentialmembers of the communitiesby virtueof theirprofessionalposition,theconsequentlygreaterpotentialsusceptibilityof thejudges to outsidepressures, herisk of the mob syndrome,and even the potentiallyexcessive weight granted tothe dossiersfrom the parquetsn the absence of professionaldefenders."A number of people who could be expected to constitute the more educated,intelligent and potentially more able stratum of society have been excluded from

election as members of the bench of the cell "gacaca urisdiction" or the sector,106 OAU report ch. 18.46.107See above, n. 4.108See above, n. 105.109Drumbl, see above, n. 29, at 546, 606.110See above, n. 105.Il Report of Special RepresentativeMoussalli,see above, n. 62.

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164 Gacaca Courts n Rwanda [2001] J.A.L.commune and prefecture general assembly: heads of government administrationswhether centralized or decentralized with the cell level; politically active persons;active military personnel; active members of the national police or the localdefence force; career magistrates, unless they are used as legal advisers; membersof the managing bodies of political parties, religious sects, or non-governmentalorganizations. The criteria for being part of the process are simply that aperson must be 21 years old, Rwandan and "honourable". In this context, an"honourable" person is one who: (a) has good conduct, a good life, and goodmoral standards; (b) always tells the truth; (c) is honest; (d) is characterized by aspirit of sharing the floor; (e) has not received a sentence, which has the authorityof resjudicata,of at least 6 months in prison; (f) has not participated in offencesthat constitute the crime of genocide or crimes against humanity; (g) is exemptfrom a spirit of sectarianism and discrimination. At face value, these criteriaseem reasonable, but many articulate, critical, enquiring and "honourable"members of the society are excluded from appointment. Clauses (d) and (g) seemto limit critical engagement and ensure that people elected will go along withthe majority and not be too probing. Similarly, judges may be removed fromthe gacaca f their participation is divisive or if they perform "an action incompatiblewith the quality of an honourable person". This will constrain objections frompeople who do not believe in simply going along with "the mob".The prospect of courts under the control of under-educated, non-legallytrained judges is even more problematic when the possible role of the conseillersjuridiques legal advisers) is examined. These advisers could play a useful role ifthey are ethical. However, their legal knowledge may be so much better thanthe presiding officers that they could control the whole process. AmnestyInternational has noted that:

"they may be able to exert considerable nfluence,as the layjudges in the gacacajurisdictionswould find it difficult o challengeor rejectguidance from advisers nthe Supreme Court who have a legal professionalbackground.""2If the gacaca court process is to work, the court's members must come from allgroups-men and women, Hutu and Tutsi-and the process must be seen tobe fair, unbiased and inclusive. Unless everyone in a community buys into theprocess and participates wholeheartedly, the work of the structure will be doomedfrom the outset. Individuals who serve on the gacacamust command the respectand support of the people in general, and those appearing before the tribunalmust believe they will receive a fair hearing.

EXPEDIENCYAND EFFICIENCYVERSUSDUE PROCESSAND FAIRNESSHave the gacacaproposals prioritized expediency at the expense of due processand fairness? Does this apparently quicker and more efficient process fall foulof a range of fair trial rights accepted internationally and in Africa, standardswhich Rwanda has undertaken to meet? Michel Moussalli has noted "the most

widely voiced concern is that due legal process will be compromised and therights of the defendants ignored". The OAU report says "speed and efficiency,important as they are, must also be accompanied by fairness. Basic humanrights must not be sacrificed either to productivity or local participation"."3 A

112 See above, n. 4.113 OAU 2000 ch. 18.49.


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Gacaca Courts n Rwandafundamental question is whether the procedures laid down for the gacacawillensure that they exercise their vast powers in a competent, independent, unbiasedway.

Some might argue that, given the African context, the notion of fair trialrights should not be given the same degree of protection in Rwanda. However,the Dakar Declaration, adopted on 11 September, 1999, following the Seminaron the Right to Fair Trial in Africa, organized by the African Commission onHuman and Peoples' Rights states that:"It is recognized that traditional courts are capable of playing a role in theachievementofpeacefulsocietiesandexerciseauthorityover a significantproportionof the population of African countries.However, these courts also have seriousshortcomings,which resultin many instances in a denial of fair trial. Traditionalcourts are not exempt from the provisionsof the African Charterrelatingto fairtrial."

Avoiding contentious procedures at all costs is in keeping with the traditionalAfrican conception of law. There is a preference for trying to settle disputesthrough reconciliation, discussion and consensus, so that there are no winnersor losers. Trials are seldom used because the way courts deal with disputescreates further animosity rather than peaceful resolution.Various international instruments demand independence and impartiality.The Universal Declaration of Human Rights states:"Everyone s entitled in fullequalityto a fairandpublichearing by an independentand impartialtribunal,in the determinationof his rights and obligationsand ofany criminalchargeagainsthim.""14

Similar provisions are found in articles 8(1) and 27(2) of the American Conventionon Human Rights"5 and article 6(1) of the European Convention for theProtection of Human Rights and Fundamental Freedoms.16 The right to a fairtrial is also found in article 14(1) of the International Covenant on Civil andPolitical Rights, which is binding on Rwanda since it ratified this instrument.The issue of independence and impartiality is seen to be so basic that the HumanRights Committee, the adjudicating body on the International Covenant onCivil and Political Rights, has found that it "is an absolute right that may sufferno exception"."7 It could, however, be argued that article 4 of the InternationalCovenant on Civil and Political Rights has relevance in Rwanda now. Article 4states that:

"intime of publicemergencywhich threatens he lifeof the nation andthe existenceof which is officiallyproclaimed,the States Parties to the present Covenant maytake measures derogating from their obligationsunder the present Covenant tothe extent strictlyrequired by the exigenciesof the situation."It may be argued that in 1994 these circumstances existed in Rwanda, but thisis certainly no longer the case some seven years after the genocide.

114 Article 10.15American Convention on Human Rights, 22 November, 1969, O.A.S. T.S. No. 36 at 1,O.A.S. Doc OEA/ser. L/V/11. 23 doc. 21 rev. 6 (enteredinto force 8 July, 1978), reprintedin 9I.L.M. 99 (1970).116 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4November, 1950, 213 UNTS 221, 1953 Great Britain TS no. 71 (Cmd. 8969) (entered nto force 3September, 1953).17 GonzalezelRiov. PeruComm.Nos. 263/1987 (28 October, 1992)U.N. Doc A/48/40 (1993).

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166 Gacaca Courts n Rwanda [2001] J.A.L.Also relevant for Rwanda, as it has ratified its accession to this regional human

rights instrument, are articles 7(1) and 26 of the African Charter on Humanand Peoples' Rights."8 Article 7(1) states:"Every ndividualshallhave the rightto have his cause heard. This compromises:(a)the rightto an appealto competentnational organsagainstacts of violatinghisfundamentalrightsas recognizedand guaranteedby conventions, aws,regulationsand customsin force;(b)the rightto be presumedinnocentuntilproved guilty bya competent court or tribunal;(c) the right to defence, includingthe right to bedefended by counsel of his choice; (d) the right to be tried within a reasonabletime by an impartialcourt or tribunal."

Article 26 states:"States parties to the present Charter shall have the duty to guarantee theindependenceof the Courts and shall allow the establishmentand improvementof appropriatenational institutions entrusted with the promotion and protectionof the rightsand freedomsguaranteedby the presentCharter."The African Charter permits no derogation from this, or any other provision.

Against this background, there are various problems with the gacaca courts.One problem relates to the rights of the accused in relation to a defence andthe ability to be represented. The only article dealing with the right to a defenceis article 65(5) of the gacaca law which states that: "[t]he Chairperson of thesession invites each defendant to speak". No provision permits the accused tohave representation. This clearly violates Rwanda's international obligations.There are also problems with fairness in the gacaca appeal process. AmnestyInternational has found:"If the gacacaurisdictionsare set up as outlinedin the draftlaw, the trials wouldclearlyfail to meet basic internationalstandards or fair trial.""9

While it would be useful to use the gacaca as a mechanism to play a part indiscovering the truth of what happened in all communities in Rwanda, it hasalready been pointed out that there are numerous problems with the law as itstands, the way the courts will operate, and the exigencies of successfully settingup so many courts in such a short time. The government should establish twoor three pilot gacaca tribunals to see how the process works. In this vein theSpecial Representative has noted that much can be done to minimize the risks.He recommends, in particular, that gacacabe launched in a gradual manner soas to test the practicalities. If these pilots are successful, the government couldallow an increasing number of communes r secteurso have gacaca. Eventually thesystem could be expanded to all parts of the country, possibly over a five-yearperiod, but for a much narrower purpose than is presently envisaged.

A TRUTH AND RECONCILIATION COMMISSION120There are various truth and reconciliation models. The model implementedin South Africa, in addition to dealing with issues of truth and reconciliation,118 The AfricanCharteron Human and Peoples' Rights (OAU Doc, 7 CAB/LEG/67/3/Rev 5)was adopted unanimouslyas a regional treatyby the Organisationof AfricanUnity (OAU) inJune1981 and the Charter itself enteredinto force on 21 October, 1986.19Above, n. 4.120See furtherJ.Sarkin,"The Trials and Tribulationsof South Africa'sTruthand ReconciliationCommission", (1996) 12 SouthAfrican ournalon HumanRights617; J. Sarkin, "The Truth andReconcil

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