02 Oct Rwanda’s Troubled Gacaca Courts
I’d like to thank Chris, Peggy, Julian, Roger, Kevin, Duncan, and Peter for asking me to join Opinio Juris for the next two weeks as a guest blogger.
Currently, I’m in Arusha, Tanzania, spending a month seconded to the Office of the Prosecutor at the International Criminal Tribunal for Rwanda (ICTR). (Standard disclaimers apply: the views expressed here are my own, and in no way represent the Office of the Prosecutor, the ICTR, the United Nations, or anyone else.) The Tribunal was established by the UN Security Council in 1994 to try those responsible for the 1994 genocide in Rwanda, and associated serious violations of international law.
Although the ICTR is the most prominent aspect of transitional justice in Rwanda, it is by no means the only institution addressing the consequences and legacy of the genocide. The Rwandan government originally took a purely retributive attitude toward transitional justice, focusing entirely on criminal prosecutions of alleged participants in the genocide. But the country’s criminal justice system was so badly damaged from the genocide, and the number of accused participants so great, that criminal trials of the more than 130,000 persons imprisoned would have taken roughly 113 years by one estimate.
Starting in 2002, then, the Rwandan government began operating a system of more than 10,000 gacaca courts (gacaca means roughly “justice on the grass” in Kinyarwanda). The aim of the gacaca courts is to increase the speed with which some form of justice is reached for thousands of participants in the genocide, while seeking to reconcile perpetrators with their communities, including with victims and survivors. (Kevin’s July 2006 post on the start of the gacaca courts has good background information; more is available online from Amnesty International and Penal Reform International.) The gacaca courts, which according to Human Rights Watch expect to try approximately 761,000 persons accused of committing crimes during the genocide, were traditionally used in Rwanda to resolve minor civil disputes over property, and were aimed not at establishing criminal guilt, but at community reconciliation.
Three months into the widespread operation of the gacaca courts, troubles are emerging that may threaten their effectiveness at promoting reconciliation and establishing some form of community justice in post-genocide Rwanda.
Criticisms of the gacaca court process tend to focus on the fact that the courts are expected to try defendants accused of carrying out or participating in homicide, though the sentence imposed for these crimes cannot exceed 25-30 years (and is often far shorter). Yet only half that time is expected to be served in prison (with credit for time already served), while the rest is served on parole, and involves participation in community service projects.
Although defendants accused of homicide do fall within the gacaca courts’ jurisdiction, more serious offenses (called “category one” offenses, and including, inter alia, planning the genocide, aggravated homicide, and rape) fall within the jurisdiction of the Rwandan criminal courts, and outside that of the gacaca courts. The category determination of a defendant’s crimes thus can mean the difference between a sentence of life imprisonment if prosecuted by the criminal courts (as it seems likely that capital punishment soon will be eliminated for genocide crimes) and a much lighter gacaca sentence. These categorizations are undertaken by gacaca court judges at the cell level, which is the smallest administrative unit in Rwanda.
Unfortunately, several gacaca court judges have recently been arrested in connection with allegations of corruption relating to decisions concerning the categorization of defendants. Six gacaca judges (known as Inyamugayo in Kinyarwanda) in Nyamasheke and one in Rulindo Districts and have been detained, the former based on allegations that they accepted bribes in exchange for determinations that a particular defendant’s crimes fell within category two, and thus would be tried by gacaca court rather than an ordinary criminal court.
These aren’t just isolated incidents, either: one of the top Rwandan officials in charge of the gacaca courts, Domitille Mukantangazwa, admitted that “corruption has eaten into some Gacaca courts,” though she claimed that the Rwandan government was adequately addressing the problem.
While these arrests might help to deter corruption among other gacaca court judges, judicial integrity has its risks as well: a gacaca court judge in Huye District recently had his home burned down after issuing a ruling that a defendant’s crimes fell within category one (and thus would be subject to prosecution by a criminal rather than gacaca court).
Concerns over corruption, the perception of biased justice, and the intimidation of gacaca judges has caused one group of genocide survivors in Rusizi District to threaten a boycott of gacaca proceedings unless steps are taken to reassert the integrity of the process.
Still other survivors have expressed outrage at the sentencing of alleged participants in the genocide to community service. The dissatisfaction of survivors with sentences involving community service also constitutes, among those holding that view, a rejection of reconciliation and restorative justice and a call for a more retributive approach.
Given that proponents of the use of gacaca courts for the trials of genocide suspects cite community reconciliation as the chief advantage over criminal prosecutions, this level of alienation of survivors from the process, if widespread, would eviscerate the primary rationale for gacaca courts. (A recent small-scale qualitative survey of Rwandans indicates that skepticism of the gacaca courts may be broadly-held among the Rwandan population.)
Moreover, dissatisfaction with the gacaca courts need not be universal for the gacaca courts’ reconciliation function to be undercut. If even a large minority of the Rwandan population believes that the gacaca process does not provide sufficient justice, the country may be unable to transition away from the legacy of its violent past. Perceptions of injustice lie at the root of many rekindled conflicts, and though both Rwandans and foreign commentators may disagree among themselves on the appropriate mechanisms for transitional justice, all must agree that the consequences of a failed transition in Rwanda would be unthinkably tragic.