Rwandan Human Rights Activist Accused of Genocide

by Kevin Jon Heller

Extremely disturbing news out of Rwanda: a senior official with a Rwandan human-rights group has been arrested after being accused of complicity in the 1994 genocide by a local gacaca court:

Francois-Xavier Byuma, vice-president of the board of the Rwandan League for the Promotion and Defence of Human Rights [“Turengere Abana”], was detained last week in Kigali and taken Wednesday to the city’s main prison, the sources said.

Byuma, who is also a popular playwright, was arrested after being implicated by a village grassroot tribunal, known as gacaca, for complicity in the Rwandan genocide.

Based on the concept of a traditional tribal council, the gacacas were set up with the aim of clearing a heavy backlog of genocide-related cases from Rwanda’s criminal courts.

According to Amnesty International, Byuma’s arrest is retaliation for his group’s investigation into the rape of a young girl that may well have been committed by the gacaca judge who accused him of complicity:

Turengere Abana recently started investigations into the rape of a 17-year-old girl. Turengere Abana alleges that it has followed leads suggesting that the rapist was the presiding judge of a local gacaca court.

After Turengere Abana commenced its investigations, the presiding judge from the local gacaca court issued a summons to François-Xavier Byuma. The gacaca court is part of a nationwide community-based justice system intended to try suspects of the 1994 genocide.

The gacaca court, in the Bilyogo secteur (district) of the capital, Kigali, did not specify the charges against François-Xavier Byuma in the summons, which he received on 3 May. He is thus unable to prepare a defence. The trial was originally scheduled for 6 May. It has been postponed to 13 May, as another trial was already in progress on 6 May.

If Amnesty International is correct, Byuma’s arrest illustrates one of the basic problems with the gacaca courts — their inadequate protection of defendants’ due process rights. Here are just a few of the problems:

A majority of cases will be judged on the basis of case-files prepared and passed on to the gacaca benches by the Public Prosecutor’s Offices. Lay judges, with virtually no legal training, may be unwilling to challenge the information contained in them. Likewise, it will be difficult for defendants, without counsel, to effectively counter cases prepared by state authorities with infinitely more resources at their disposal. The fact that these individuals were arrested and detained for years by the government may further dispose gacaca participants to consider the pre-trial detainees as guilty regardless of the merits of their cases or the fact that in most cases detainees were arbitrarily arrested and unlawfully detained.

[snip]

There is no clear, definitive statement in the gacaca legislation that states when defendants are informed of the charges and case against them. Defendants require adequate time and facilities to prepare their defence, particularly as they are responsible for it. There is also no provision enabling the gacaca benches to adjourn proceedings if defendants have not been given sufficient time or the materials to prepare their case. Defendants who have pleaded guilty to genocide offence(s) are present when the cell gacaca organs categorize their offence(s). Detainees will be informed of the charges against them and the category within which they fall following the seventh meeting of the gacaca organs when the courts categorize each of the accused according to Organic Law No 08/96 of 30 August 1996.

[snip]

The competence of the gacaca judges is questionable. Most of them have no legal or human rights background. The highly abbreviated training they have received is grossly inadequate to the task at hand, given the range, character and complexity of crimes committed during the genocide. Their concomitant lack of legal objectivity, moreover, could make it more difficult for them to resist governmental and local interference in gacaca proceedings or their own subjective experience of what occurred.

More as the story develops.

http://opiniojuris.org/2007/05/17/rwandan-human-rights-activist-accused-of-genocide/

7 Responses

  1. I hope all the early enthusiasts for the gacaca courts (e.g., Helena Cobban) are taking note of this. I raised this very issue with Mark Drumbl over at PrawfsBlawg where he is guest blogging (I wish I had known of the AI report, however, so as to link to it as well).

    Mark, in this case speaking of Uganda, writes ‘Many people who actually live in northern Uganda, for example among the Acholi population, support justice. But for these people justice means traditional community methods of dispute resolution and integration — particularly for child soldiers — that are deeply symbolic, communicative, and restorative. Some community members have implored the ICC not to continue with the indictments.’ I wonder if a preference for these ‘local’ and/or ‘traditional’ conceptions and methods of justice fancies itself as part of a larger strategy of ‘subaltern cosmopolitan legality [that seeks] to articulate new notions of rights that go beyond the liberal ideal of individual autonomy, and incorporate solidaristic understandings of entitlements grounded on alternative forms of legal knowledge’ (Boaventura de Sousa Santos and Cesar A. Rodriguez-Garavito). Now as sympathetic as I am to much this ‘counter-hegemonic globalization,’ animated as it is by a ‘redistributive ethos’ in its opposition to that form of globalization imposed from above by the purveyors of the ‘Washington Consensus’ and Neoliberalism, I think it risks romanticizing and valorizing the cultural knowledge and practices of ‘the other’ in a manner that does violence to a universlistic notion of justice, thereby needlessly, carelessly, and dangerously jettisoning aspects of the Liberal and Enlightenment legacy that can (and have) serve(d) emancipatory ends (similar concerns were raised by Martha Nussbaum in Sex and Social Justice, 1999). I’ve yet to read Mark’s book so I can’t speak to his larger agenda and purposes, but I think in our understandable endeavor not to impose ‘Western culture’ on others in a neo-imperialistic fashion we risk sanctioning that which is contrary to many and rightly cherished humanist and Enlightenment values (For a fair accounting, see Stephen Eric Bronner, Reclaiming the Enlightenment: Toward a Politics of Radical Engagement, 2004). In some respects, this is perhaps a recapitulation of the ‘Rawls (read ‘Liberals’) v. communitarians’ debate and a failure to appreciate at least the spirit of the Hegelian dialectic that Marx well understood.

    The Santos and Rodriguez-Garavito quote is from their edited volume, Law and Globalization from Below: Towards a Cosmopolitan Legality (Cambridge, UK: Cambridge University Press, 2005).

  2. erratum: universalistic

  3. ‘…I think in our understandable endeavor not to impose ‘Western culture’ on others in a neo-imperialistic fashion we risk sanctioning that which is contrary to many and rightly cherished humanist and Enlightenment values”

    What struck me as I read the post was similar criticisms emerging from the Khmer Rouge Tribunals. It seems that in the case of justice in incidents as grave as Rwanda, Cambodia, etc, there is no answer that will satisfy all parties involved. A hybrid system is not going to satisfy many of the victems and will invoke cases such as the one you are highlighting here. In other words, it will become politicized. I can understand some of Patrick’s argument as well; that the counter-argument smacks of Western imperialism (at least I think that’s what he’s saying). So, what then? One system is too ‘hegemonic’, one system looks like victor’s justice, and another system does not fit within the normative benchmarks as dictated by core states about which the system is established. There is no panacea for justice, it seems.

  4. subaltern cosmopolitan legality [that seeks] to articulate new notions of rights that go beyond the liberal ideal of individual autonomy, and incorporate solidaristic understandings of entitlements grounded on alternative forms of legal knowledge

    Whoa… that’s a lot of buzzwords. Extra points for “subaltern.”

  5. Daniel,

    By way of clarification: Generally speaking, I’m in favor of the ICC and not opposed, in principle, to hybrid courts.

    Matthew,

    The jargon is not jarring to one familiar with the literature, but I think the jargon can, on occasion, act like buzzwords (keeping a distinction between jargon and buzzwords), thereby serving to obscure more than illuminate the meaning of terms. In fairness, Santos and others often define and explain their terminology (even if only by way of reference in notes to earlier or other literature), which of course cannot be captured in culling one quote from their book.

  6. Patrick,

    I didn’t mean to suggest you were taking a definitive position. It seems no matter what system is in place to recover from historical atrocities will be met with criticism. My point remains; there is no panacea for justice.

    For what it’s worth, there were a lot of 50 center’s there…”solidaristic” was my particular favorite. It gave me grad school flashbacks!

  7. Although I agree with the gist of Professor Heller’s post, I think it overstates the expertise of ICTR or ICC judges. Few, if any, have military experience, yet they are expected to make decisions on propotionality and effective control that could be better made if they had a military background. Moreover, I don’t see how experience in the activist community as a human rights proponent, which describes most of the bench, makes one suitable to become an objective judge. As evidence of the trouble with the activist-judge tie, one ITCY judge recieved an award for her decision defining rape as genocide, which is very troublesome.

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