Problems and Purpose

In the wake of the 1994 Rwandan Genocide, the country needed a solution to bring justice to a country still ridden with perpetrators. In 2002, there were still 115,000 suspects awaiting trial for crimes related to the genocide, and it would have taken centuries to try everyone. Many jurists had been murdered during the genocide and the capacity of the country was not sufficient to cope with the prisoners, packed in jails.

There were also many deeper, emotional and long-term goals that Gacaca sought to fulfill. As the National Service of Gacaca Jurisdictions website outlines, the precise objectives of Gacaca were:

1. “To reveal the truth about what has happened. The unity and reconciliation of the Rwandans that are targeted are based on justice for all. But, this justice can become true only if the truth about the events is established...
2. To speed up the genocide trials
3. To eradicate the culture of impunity
4. To reconcile the Rwandans and reinforce their unity
5. To prove that the Rwandan society has the capacity to settle its own problems through a system of justice based on the Rwandan custom.” [1]

The courts therefore would serve the function not only of carrying out the legal process of trying genocide suspects, but also of social healing and post-conflict reconciliation. Trauma from the genocide still runs deep in Rwandese society. The Gacaca process thus sought to involve all layers of society in a process of participation and hope for justice.

Background History and Context

To understand the characteristics and the need for an organ like Gacaca in Rwanda, it is important to be familiar with the history of the Rwandan genocide, which occurred in 1994. The genocide was carried out in the short time period of 100 days, with an estimated staggering 800,000 to 1 million dead, mainly Tutsis, one of the two major groups in the country. The genocide decimated about 75 per cent of the Tutsi population.

The division between the Tutsi and Hutu only began when the Belgian colonists arrived in Rwanda in the 1800s. Before this, Rwandans had lived as one people with one language, Kinyarwanda, with a shared religion and culture. Tutsi and Hutu were, approximately, distinctions of rank or class in society: Tutsi originally meant a herdsman, and a Hutu meant a cultivator. Later on as hierarchy developed, Tutsi came to symbolize someone of higher rank in relation to the state. Yet this did not differ from other vague class distinctions in other societies of the world. When the Europeans arrived in the late 1800s, they imposed Hamitic ideals on Rwandans, a divide and rule regime, to lift the minority into power to make their administration easier. They distributed identity cards, so that anyone with over ten cows was from then onwards called a Tutsi (14%), and so were his descendants, and anyone with less would be Hutu (85%). Huge resentment amongst the Hutus built up over time: they were for example completely ruled out of public life and high positions. The Belgian rulers told the Tutsis who disagreed with their role: “You whip the Hutu or we whip you”.

After the Second World War, when Rwandan independence was dawning, the Hutus began a campaign of social revolution to strip the Tutsis of power. In 1959, for the first time in history, there was violence between groups that called themselves the Tutsis and the Hutus. Years of conflict ensued, and Hutus had soon assumed complete power. From the very beginning of hostilities, the Belgians thought pragmatically, and were swift to switch to the Hutu side. Full-scale genocide ensued, after several warning signs and unanswered pleas for help, in April 1994. The media and the society had indoctrinated the Hutu population so deeply that when orders were given out to kill the Tutsi, neighbors and family members would often slaughter people very close to them. Indeed, because the great majority of génocidaires were average citizens, the courts would later experience an unprecedented volume of people to prosecute, as well as the need to deal with justice on a very personal scale.[2]

With a lethargic French intervention and a UN force which was not given enough resources or mandate to intervene, the Rwandan Patriotic Front (RPF) eventually came to intervene on behalf of the Rwandans. The RPF included mostly Rwandan Tutsis whose families had escaped the persecution but also Hutus. By late May, RPF had more than half of Rwanda under control, and effectively ended the genocide, which might have otherwise completely wiped out the Tutsi population.

Rwanda was, following the genocide, officially the absolute poorest country on Earth as ranked by the World Bank. It had a lost harvest, which meant not only not enough food for the people, but also a lost season of coffee and tea, the main export crops, and an infrastructure laid to waste, from electricity and phone lines to staplers in offices. Wells that were not filled with bodies were hard to find. Killing had not occurred in secluded concentration camps; it had taken place on streets, homes, hospitals, shops, schools, and many Catholic churches. This would mean justice, too, would need to take place in these highly localized settings. The treasury was entirely empty and children living amongst each other without any adult numbered at 100,000.[3]

By 1995, this destruction on all levels of society impelled Pasteur Bizimungu, then President of Rwanda, to call into order an international conference to find a strategy to deal with the repercussions of genocide. But despite efforts to prosecute people in conventional courts, through the conventional legal system, it would have taken over 200 years to persecute the wrongdoers. With justice as the focal point of its policy, the new government would however not, under any circumstance, accept impunity or the exemption from punishment of the criminals. The government was composed of mainly Tutsi, but included many of those Hutu who had not partaken in the genocide.

Therefore, in 1998 a Commission involving “all political parties... ministries, professors, university teachers, youth” was called upon to find a way of popular participation to find a solution to the problem, and the idea of Gacaca was revived. In 1995, the Ruhengeri province had spontaneously and independently used Gacaca to settle their justice issues, and this too acted as inspiration. The Rwandan government therefore proposed in 1999, refusing the other alternative of giving amnesty to the génocidaires, to revive the gacaca courts to deal with the suspects.[4]

Furthermore, following the flagrant lack of foreign help during and immediately after the genocide in Rwanda, despite numerous calls for assistance and intervention at the time, it is probable that there was also a will to bring a pre-colonially Rwandan approach into play.

Organizing, Supporting, and Funding Entities

Gacaca courts were established by two major laws, the Organic Law (1996) and the Gacaca Law (2001). In 2002 the pilot phase began, with one cell in each sector chosen to test the courts, and in 2005, the process entered nationwide scope.[5]

Participant Recruitment and Selection

This history led to the revival of the traditional Gacaca conflict resolution model, which had been historically used in varying forms across the country. Rwanda has a strong tradition of decentralized decision and law making as well as of community deliberation. Although colonialism had imposed Western legal frameworks on Rwanda, the Gacaca had retained its place in society, despite inevitably having lost influence during the colonial period.[6]

Community members whose disputes were too controversial to handle internally would in the past call on the Inyangamugayo, the community justice council, to give verdict on the dispute. Conflicts were thus often resolved communally on a patch of grass between all parties involved. From this comes the word ‘gacaca’, which is Kinyarwanda and signifies ‘grass’ or ‘lawn’. The Gacaca judges in the past, however, did not have the power to deal with cases of murder. The traditional system was also unified and codified nationally to meet standards across the board, whereas before the approach was bottom-up and not standardized centrally by the government.

In October 2001, Rwandans elected in their towns and villages a quarter of a million judges, who were to carry out justice in approximately 11,000 communities to be involved in Gacaca. In 2004, the number of judges decreased from 250,000 to 170,000. More highly educated people were generally elected to be sector judges. Gacaca has raised the social capital of women, who made up 35 per cent of the judges on the cell level. Many Hutu have also been empowered by their participation as judges in Gacaca.

The judge in the gacaca justice system is a ‘person of integrity’ from the community, displaying wisdom, truth, and justice for the community. The people in the community elect each judge to their position. The position is not full-time but wages are given for the day that the judge needs to miss work to deliberate, and the judges give the final verdict in each case.

Methods and Tools Used

The Gacaca courts are a type of restorative justice system.

What Went On: Process, Interaction, and Participation

The Gacaca court convenes in open air, and anyone from the community is invited to attend. Participation in the justice process occurs simply by raising one’s hand to speak, and evidence can be presented on a spontaneous basis. The suspect is brought to the village or community where the crime was carried out. Survivors, witnesses, and everyone who is affiliated with the case will usually be present.

The international courts (International Criminal Tribunal for Rwanda) and the national courts deal with the most serious perpetrators as well as the organizers of the genocide. However, the international courts are often perceived as a detached Western way of doing justice that in the personal, post-genocide climate was the best option to match the needs of the people.[7] Only those who committed crimes but did not give orders can be tried in Gacaca courts.

The Gacaca courts comprise different units of scale. First, there are Cell’s Gacaca Courts, a cell being the smallest local administrative unit in Rwandan society, comprising of 830 people on average. Sector’s Gacaca Courts and Sector’s Gacaca Courts for Appeal feature the sector unit of administration of approximately 5,000 people.

Each jurisdiction has three organs: the General Assembly, which includes all the population of the Cell beyond 18 years of age; the Bureau of the Gacaca Jurisdiction, which includes 19 members elected by the General Assembly; and the Co-ordination Committee, which includes five members elected from those in the Bureau.[1][8]

Deliberations and Decisions

The activities of the courts are as follows: collection of information relating to the genocide; categorization of persons prosecuted for having committed genocide or having played a role in different genocidal crimes; and trial of cases falling under their competence.[1] The fact that trials occur in an open space in the full view of the community exemplifies the transparency and participatory nature of the system. Anyone is free to contribute comments, but the final decisions rest with the judges, of whom there are often several at once. People’s application of religious ideas into the process, which have a strong influence in Rwanda, such as mercy and redemption, has also played a large part in fostering people’s participation in Gacaca. A gacaca court has the power to give anything up to a life sentence, but it cannot give the death penalty, which is otherwise legal in Rwanda. If the crime committed is low-scale, such as the destruction of material property, the sentence will often be made useful to the community in the form of transferring it to community service, and the perpetrator will often need to carry out the sentence by rebuilding what was destroyed. Those who lie or refuse to testify at Gacaca may risk a prison sentence of one to three years.[9]

Astonishingly, 25 per cent of trial cases have resulted in the acquittal of the accused, which might demonstrate that the judges were likely to have to a very large extent been impartial and representative of the Rwandan society, both formerly Tutsi and Hutu.[8] Many perpetrators in fact strongly support the Gacaca system, because it gives them a hope of reconciliation or even release.

Influence, Outcomes, and Effects

In 2009, it is said that Gacaca courts had tried 1.1 million people, although other estimates place the number at hundreds of thousands. By 2010, the genocide case phase of Gacaca courts was nearing its completion. But as of 2017, the government is deliberating the continuation of the courts, due to the frequent success of the model. The Gacaca courts might replace the abunzi local courts and become part of the national Rwandan criminal legislation beyond genocide reconciliation and justice.

Concerning reconciliation and national unity, one Rwandese observer stressed the role of Gacaca in facilitating reconciliatory dialogue, saying, “That’s a very important dialogue... starting with the hard facts is difficult, but finally you reach a consensus, whatever the case... Previously people didn’t want to even look at one another, but now they can hope to, they can hope to sit down and they can discuss issues.”

Huge numbers of people in Rwanda have taken part in the Gacaca courts, which implies their importance. In a survey prepared by Johns Hopkins University, 89 per cent of the Rwandan population said they would actively participate in providing evidence during the Gacaca process, and 87 per cent said they had either high or fair confidence that Gacaca would contribute to sustainable peace in Rwanda.[10]

The process of healing is inescapably slow, however, and results vary on a very individual basis, but in many cases Gacaca has greatly aided the process of reconciliation. The dissemination of truth through the trials has been particularly meaningful in situations where the fates of many family members of victims have been unknown. In other cases, there has been a serious challenge posed of the process having no emotional relieving effect, or of even increasing trauma. This has occurred when there has been either a lack of truth or participation, due to various reasons. It is almost impossible to quantitatively measure the levels of success in general terms of Gacaca on the healing process from genocide due to the intimately personal nature of the genocide.

In practical terms, the courts have succeeded in easing the stress on the judicial system by trying the genocide suspects whose processing through conventional means would have not been completed in generations. It has improved conditions in Rwandan prisons, where previously detainees often had to take turns in stacked beds because there were so many suspects. The trials have furthermore set free many of those who were mistakenly imprisoned, by speeding up the process of going through the cases. The cost of running the system for the Rwandan government was USD 39 million.

Analysis and Lessons Learned

Gacaca has been termed “a revolutionary court system”, which serves as a legal instrument but also is an evolving, dynamic, and lived socio-legal practice, with the possible power to heal and empower post-conflict society.[11] Gacaca is also unique in its democratic mass involvement of the population, with the majority of Rwandans having taken part in some way. It is indeed the largest community-based justice initiative of all time.[12] Gacaca courts have the power to prosecute and try perpetrators of crimes against humanity and crimes of genocide.

There is a reportedly high level of trust in the judges due to the legitimacy and responsibility they have demonstrated in their respected communities in order to be elected for the position. However, outside observers say that sometimes judges can be too affected themselves, as community members, to be completely impartial. On the other hand, they often also possess deeper wisdom on the cases than an outsider could.

The mere pace of the gacaca system in facilitating the previously jam-packed judicial process is perhaps the most important evidence of its significance on a practical level. Without the courts and despite shortcomings, it would effectively never have been possible to bring justice to hundreds of thousands of people.

Outside human rights groups have criticized the courts primarily based on a strictly legal analysis of framework underlying the system, which by conventional Western standards can seem lacking. They have also criticized the informality of the legal documentation underlying the system. According to Amnesty International, the courts are not fair by international standards, and violate the individual rights of the genocide suspects in particular. This criticism is arguably useless in some sense, however, as the alternative, considering resources of Rwanda to deal with suspects, would have been a life sentence waiting for a trial for thousands of suspects.

Survivors have apparently been persecuted on occasion when they have given evidence to the courts. Nonetheless, other outside sources equally report that levels of protection, of suspects alike, have been relatively high.[13]

Many Rwandan and non-Rwandan observers have also stressed the nature of Gacaca not only as a legal instrument, but a social and reconciliatory institution.[14] The high levels of popular participation show that the system has been successful enough in creating a space for people to participate that they have felt enough agency to continue being part of the process. As the former Legal Adviser to the Gacaca Commission said, the Gacaca rests on and is created by people’s participation: “At Gacaca, the truth ultimately comes from the population. We know that people will tell who is responsible, because they saw what [the perpetrators] did. They stood there as it happened... There will be no confusion about who is responsible for those things.”[15]

Gacaca courts were a risky endeavor for Rwanda due to their unconventional legal nature and also because of the volatility of the deep and traumatic personal scars of people in the divided post-genocide climate. But Gacaca was also a risk that Rwanda was almost forced to take due to the lack of resources needed to deal with the enormous numbers of genocide suspects in the nation’s prison system, and the lack of help to deal with this clog. For instance, by 2000, only 3 per cent of the cases of genocide suspects had been heard.[16]

The courts was also a manifestation of the will of the Rwandan people to rekindle their link with the their pre-colonial history prior to the colonial period, which seeded the division that would result in genocide. By now, there have been hundreds of thousands of Rwandans who have participated.

Gacaca has furthermore evolved and assumed particular characteristics in response to people’s needs in specific areas, and seems to have beyond its legal framework, a highly personal character, which is important in the case of such an inevitably personal justice effort.

Despite some concerns and discrepancies in satisfaction, overall, it is hard to imagine how a country so dilapidated as Rwanda was post-genocide could have better dealt with both its pragmatic and deeply emotional burdens than by employing the Gacaca courts to attempt to reconstruct and heal the society. Localized transitional justice in the aftermath of mass atrocity elsewhere is drawing many lessons from the Rwandan experience, as it has been a particularly large-scale and often effective experiment.

See Also

References

[1] National Service of Gacaca Jurisdictions. Available at https://archive.is/20120804031909/http://www.inkiko-gacaca.gov.rw/En/EnIntroduction.htm

[2] Jones, Nicholas A. The Courts of Genocide. New York: Routledge, 2010, p. 51

[3] Kuusipalo, Rina. Rwanda of a thousand stories. United World College Student Magazine, 2009. https://interuwcmag.wordpress.com/2009/07/11/rwanda-of-a-thousand-stories/

[4] Harrell, Peter E. Rwanda’s Gamble. Lincoln: Writers Club Press, 2003, p. 66

[5] Molenaar, Arthur. Gacaca: Grassroots justice after genocide. Leiden: African Studies Centre, 2005. Available at https://openaccess.leidenuniv.nl/bitstream/handle/1887/4645/ASC-1236144-071.pdf;sequence=1, p. 77

[6] Ingelaere, Bert. “The Gacaca courts in Rwanda”. In Traditional Justice and Reconciliation after Violent Conflict. Stockholm: International IDEA, 2008. p. 43

[7] Ingelaere, Bert. 2008, p. 45

[8] Clark, Phil. The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda. New York: Cambridge University Press, 2010. https://www.cambridge.org/core/books/gacaca-courts..., p. 54

[9] Harrell, Peter E. Rwanda’s Gamble. Lincoln: Writers Club Press, 2003, p. 72

[10] Molenaar, Arthur. Gacaca: Grassroots justice after genocide. Leiden: African Studies Centre, 2005. p. 75

[11] Clark, Phil. The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda. New York: Cambridge University Press, 2010. p. 3

[12] Jones, Nicholas A. The Courts of Genocide. New York: Routledge, 2010, p. 9

[13] Clark, Phil. The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda. New York: Cambridge University Press, 2010. p. 343

[14] Clark, 2010. p. 5

[15] Clark, 2010. p. 138

[16] Clark, 2010. p. 56

[17] Rombouts, Heidy. Victim Organisations and the Politics of Reparation: a case study on Rwanda. Antwerp-Oxford: Intersentia, 2004.

[18] Urusaro, Alice Karekezi et al. “Localizing Justice: Gacaca courts in post-genocide Rwanda”. In My Neighbor, My Enemy. Cambridge: Cambridge University Press, 2004.

External Links

Chakravarti, S. (2012). Gacaca: A Flawed Project and the Hope for Transitional Justice

“Justice on the grass”. The Economist, June 6, 2002.

Khaleeli, Homa. “Rwanda’s community courts: a unique experiment in justice”. The Guardian, January 11, 2010.

Le Mon, C. “Rwanda’s troubled Gacaca courts” Human Rights Brief, Vol. 14, No. 2, p. 16, Winter 2007.

“’Don’t extradite’ Rwanda suspects”. BBC News, November 2, 2007.

YouTube: Gacaca Justice – Rwanda (Journeyman Pictures)

Notes