Gacaca’s End and Its Legacy

by Gregory Gordon

The Rwandan government announced today that it will stop taking new gacaca cases as of July 31st and that it intends to wind down gacaca operations within five months. Gacaca is a traditional local justice procedure (gacaca roughly means “justice on the grass” in Kinyarwanda) that the government modified to process the staggering number of low-level genocide cases and help reconcile perpetrators with their communities. Starting in 2002, the Rwandans  began operating a system of more than 10,000 gacaca courts. Regardless of what one may think about its merits, the gacaca experience has represented a Herculean task with hundreds of thousands of cases processed in the past few years. In the words of Lars Waldorf, it was mass justice for mass atrocity. But was it successful? I was asked today on the BBC World Service (interview starts at the 18:53 mark) about gacaca‘s legacy and I noted that it was mixed.

Gacaca has certainly helped clear out Rwanda’s shamefully overcrowded prisons and overwhelmed domestic courts. And, in theory, it has conferred the advantages of community-based restorative justice – local participation, perpetrator-victim confrontation and reintegration, community healing, and use of an organically grown, culturally resonant procedure. In so doing, it has nominally eschewed the top-down Western retributive approach that focuses on punishing the individual (what Mark Drumbl calls “Western legal liberalism”).

But I also made reference in the interview to gacaca‘s most visible problems – its endemic corruption (which the Rwandans have attempted to deal with) and alarming due process deficits (that portion seems to be edited out of the interview — but it is important as I suspect gacaca’s imminent demise, coincident with Rwandan criminal justice system reform initiatives, is motivated in part by the government’s efforts to make extradition to Kigali look like a more attractive option to Europeans harboring genocide suspects — not that gacaca is used for such suspects but general justice system appearances can be important). I noted, and academic literature has amply explored, the Frankenstein monster assemblage of a local, non-systematized, oral-tradition civil dispute mechanism (traditional gacaca) with a codified, state-centric criminal justice bureaucracy (what the Rwandan government has been operating). Clearly, traditional gacaca was not meant for hearing cases of genocide.

But somewhere in the process of retrofitting it for mass atrocity, gacaca appears to have lost its core restorative justice defining qualities. In my upcoming article “Complementarity and Alternative Justice” (to be published in the Oregon Law Review), I explore this dilemma in greater depth. I still believe that there is hope for successfully using traditional alternative justice mechanisms to deal with gross human rights violations. For that, a better calibrated hybridization will be necessary. Posterity may not ultimately view gacaca as the ideal blueprint; but it will likely appreciate it as an invaluable testing ground.

http://opiniojuris.org/2009/07/24/gacacas-end-and-its-legacy/

2 Responses

  1. the gacaca Courts have undermined the already fragile equilibrium between the present Rwandese communities which are no longer Hutu-Tutsi-Twa but Hutu survivors-Tutsi survivors-Ugandan origine returnees-TZ origine returnees-Burundian origine returnees and Congolese origine returnees. members of these communities have played a role in victimising one or two Hutu suspect of genocide. And this instead of laying a solid foundation for unity and reconciliation has opened another clivage between Rwandans on the whole

  2. I agree with Professor Gordon’s suggestion to have a hybridization of traditional alternative justice systems. Indeed, the gacaca and other traditional systems can enhance restorative justice if the weaknesses facing them can be overcome with some admired content of other well established systems. Judicial corruption, however, has become an endemic feature not only in traditional alternative courts (like gacaca in Rwanda, Kgotla in Botwana, Mato Oput in Uganda, and one in Mozambique in which traditional healers are involved)  but also in the mainstream justice systems in Africa. Political influence, financial and other status granting social positions have enhanced corruption in these systems due to lack of proper internal controls and practical checks and balances.
     
    If some internal controls and practical checks and balances are in place, the purpose of restorative justice, as opposed to a retributive one, would be achieved through these traditional alternative justice systems. This would ensure reconciliation so that victims can live side by side with the perpetrators of the most heinous crimes.
     
    The traditional involvement of the community in these trials satisfies the African worldview that an offense does not only affect one or few persons. Rather it offends society collectively to the point that it creates an imbalance between the perpetrator and the victim(s) as well as the community at large.
     
    Although faced with the danger of victimizing the very suspects they seek to reintegrate in society, Professor Gordon’s proposal for hybridization may be viable. Instead of their complete overhaul or abandonment, hybridization may reduce their disadvantages and serve the purpose of restorative justice which is central to African worldview.

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