Written by Luc Choong, a final year Bachelor of Laws student in Universiti Malaya.
Edited by Adele Soh Chien Yi.
Reviewed by Pravena Sreetharan.
The Rwandan Genocide was a modern-day catastrophe resulting in an estimated million casualties. With many aggrieved seeking a semblance of justice for the death, sexual violence, and pillaging witnessed, Rwanda utilised gacaca courts to accommodate such requests. However, being a communal court with no legal representation — with laymen presiding as judges empowered to sentence the guilty punitively — such a mechanism for justice has had various implications on the Rwandan society. With this context, the author aims to highlight the manners in which the courts operated, the criticisms received by gacaca courts, and the impacts it may have imprinted on present-day Rwanda.
I. INTRODUCTION: RWANDA’S INTERNAL POLITICS PRE-GENOCIDE
The need for transitional justice is a preliminary indicator that a nation’s past was scarred. This mechanism is utilised in situations where ‘systematic or massive violations of human rights’ had occurred, whereby broad goals of rebuilding a nation whilst providing recourse for those aggrieved are sought after.
The Rwandan genocide saw two factions, the Hutus and the Tutsis engaging in armed combat in 1994. These two factions were splintered not by nationality nor religion, but rather, disproportionate economic privileges rooted in colonialism. This culminated from strategies of divide-and-conquer amongst Rwandans by European rule. The distinction between the two factions stemmed from the Hutus being designated as farmers whereas the Tutsis looking after livestock, with the latter being far more profitable. As time progressed in Rwanda, the Tutsi minority entrenched their power domestically, emerging as the local elites.
The tides, however, turned when Rwanda gained independence from Belgium, with Hutu-affiliated officials snatching power away from the Tutsi monarchy in 1961. And though the Hutu faction grew stronger politically, internal power struggles within them arose — resulting in a coup d’état of the then incumbent president by his very own defence minister, Juvénal Habyarimana. This entrenchment of power by President Habyarimana permeated Rwanda via minute instances of violence towards the opposition, curating a single-party state whereby all Rwandan citizens were members of his party, cementing his position as sovereign.
However, such grasp over the nation was impermanent, as in 1990, Tutsi refugees who fled to Uganda collectivised under the banner of the Rwandese Patriotic Front (‘RPF’) and galvanised an invasion in Rwanda, leading to the 1992 ceasefire after various skirmishes — to the dissatisfaction of Hutu extremists. Unfortunately, this was merely the calm before the storm.
In 1994, a plane carrying then President Habyarimana was unceremoniously shot down, killing him. There exists no historical consensus as to who the perpetrators of this act of terrorism were. During this period, fingers were pointed either at Hutu extremists or the Tutsi RPF, breeding more animosity amongst the factions. It did not matter who had shot the plane, as the dangerous concoction of confusion and animosity had sparked Hutu ethnic supremacists to begin the genocide.
The gravity of this genocide is not one to be underplayed. This was not a mere skirmish with few casualties, but rather an event with the sheer magnitude of nearly one million casualties within 100 days, now touted as among the most catastrophic events in recent history. The atrocities did not halt at killings, as sexual violence ran rampant against the civilian population of Rwanda within the span. Estimates range from 250,000 victims to 500,000 victims, but the exact number remains fuelled with uncertainty, as admitting oneself as a victim of rape was ‘often enveloped in secrecy’ due to its taboo nature within Rwandan society.
Even as such figures reflected an urgent state of need, the United Nations’ (‘UN’) response was lacklustre at best, and negligent at worst. Michael N. Barnett, political officer at the U.S. Mission to the UN who was assigned to cover Rwanda, recounts:
Furthermore, although the UN and Belgium forces were stationed in Rwanda, no mandate was given to halt the barbarity. Rather, to illustrate, when 10 Belgian soldiers were killed in the crossfire, peacekeeping forces were instead pulled out of Rwanda. The bottom line here is that the victims of the Rwandan genocide had little-to-no external forces aiding nor alleviating the intensity of committed atrocities.
It was only roughly after three months of devastation, that the beginning of the end of the Rwandan genocide was marked by the RPF’s seizure of Kigali. With approximately a million individuals seeking recourse, the UN Security Council created the International Criminal Tribunal for Rwanda (‘ICTR’). Despite the ICTR being lauded, it lacked capacity to provide justice to the magnitude of individuals seeking recourse. The inadequacy of the ICTR may be elucidated by its costs, whereby millions of dollars and months of deliberation were spent on a mere 15 trials in the span of nine years — indicating delayed and slow justice being served to a broken community in need of the opposite.
Though, as necessity is the mother of invention, the RPF sought for a solution, one contemporarily known as the gacaca.
II. A CRITICAL APPRAISAL OF THE GACACA COURTS
The conclusion of the 1994 Rwandan Genocide saw many aggrieved seeking for recourse. And though the conventional method for criminal justice within Rwanda was to utilise national criminal courts, said system could not withstand 20 per cent of the adult population, that eventually visited gacaca courts, within its domain. This birthed some 11,000 gacaca courts — initiated by the incumbent RPF government — to accommodate the overwhelming demand for remedy, as alternatives such as the ICTR and local courts were insufficient.
A. Features of the Gacaca Courts
The traditional form of gacaca courts consisted elderly male members commanding the respect of their communities, who presided in a panel to adjudicate arising disputes within their people. Its primary goal was to ensure impartiality in rulings — with the common intention of benefitting the community — regardless of who was being trialled. However, the nature of disputes traditionally revolved around internal disputes of property, indicating that the extent of crimes adjudicated in traditional courts were starkly less serious than genocidal crimes within national courts.
Though it may seem ludicrous to elect laymen with no legal background to adjudicate over heinous crimes, one must be reminded to juxtapose such elections with the lack of viable alternative mechanisms that could similarly cater to the large number of trials to be heard. To alleviate such concerns, the RPF had placed certain mitigatory measures which include, inter alia, the election and training of judges, a specified court structure, and the categorisation of causes of action with respect to the severity of crimes.
1. The election of judges
Though the authentic form of gacaca required elderly males of a community to reside in the panel, the modern rendition instead implemented a voting system for the community to select judges. Known as inyangamugayo, these judges were elected on the basis of their integrity in the eyes of the community. Meaning, that judges who were participative in the genocide as an aggressor would either likely be unelected or forced to resign should this come to light. Moreover, an inyangamugayo is required to not have any criminal record, not hold any government position, and must be aged 21 years or older. These safeguards were aimed to streamline the individuals who would wield much of the discretionary power when hearing disputes, lending to some semblance of legitimacy to these judges. Further, this practice of democratic elections — albeit small-scale — had marked the end of the patriarchal, archaic requirement of being a male to even qualify within traditional gacaca courts. With many women finally recognised and elected as inyangamugayo, such adaptation to the traditional gacaca ensured optics of impartiality amongst all genders were present within each gacaca court.
2. The training of judges
Those elected as inyangamugayo would then undergo training provided by law students and magistrates on basic facets of a court system. Teachings covered court functions such as the trial system and testimonies, knowledge on witness traumatisation, and information gathering to enable judges to adjudicate over facts and provide appropriate sentencing.
Whilst it is commendable that judges were given some semblance of training by other members of society deemed fit to teach, this was a massive scale operation that would have been difficult to monitor. Considering that training would have required the simultaneous cooperation of thousands to enable this transitionary mechanism to flourish, it is hence something that could not be guaranteed nor ascertained. Ultimately, it does, to some extent, mitigate concerns on the non-legal background of these judges.
3. A court structure
Following the training, those elected would only reside in the cell court — the lowest level within the modern gacaca hierarchy. Higher qualified individuals would sit on panels in the sector court, and lastly, the appeals court. As such, there is a level of safeguard analogous to the conventional court system contemporary societies are more acquainted with. This analysis will be continued in the next section as these two safeguards interact.
4. Providing categories for different causes of actions differentiated by severity
Initially, the Organic Law of 30th August introduced four categories of offences determined by their severity, though this was reduced to three categories in 2004. The first category governed leaders or accomplices who misused their authority to encourage acts during the genocide, such as sexual violence and torture. The second category however, was directed at ‘notorious killers’, including those who committed torture or had allegedly executed dehumanising acts to deceased bodies. These two categories fall under the purview of sector-level courts. The final and third category concerned crimes related to property — such as theft and pillaging — and were heard in cell-level courts.
The streamlining of categorised crime within each respective level of court has been the uncontended factor for the purported success of gacaca courts. As seemingly more qualified individuals reside in the sector courts, it is appropriate that they adjudicate over more serious disputes. However, as aforementioned, those who reside in sector courts are not necessarily individuals equipped with a legal background. At this juncture, it would be ‘slightly-more-qualified-laymen’ who would have adjudicated over heinous crimes such as defiling a dead body or encouraging sexual violence amongst their subordinates. Additionally, depending on the category of offence, age of the perpetrator, and whether a plea was made, imprisonment could have been sentenced to those convicted. If community service was sought, this essentially would have pried open opportunities for the guilty to halve their prison sentence, as it instead would have been spent on community service. Although such arrangements were undoubtedly necessary — due to the overwhelming case load — perhaps it would be fair for one to raise a brow at this structure.
B. Salient Differences between a Gacaca Court and a Conventional Court
For the purposes of this section, a ‘conventional court’ resembles one that has sufficient safeguards implemented regardless of jurisdiction. It is a court observed in most functional legal systems equipped with, inter alia, a qualified judge and maxims such as a right to attorney. Additionally, a conventional court may abide by international standards enshrined in the International Covenant on Civil and Political Rights (‘ICCPR’), which protects one against double jeopardy, arbitrary arrest and detention, self-incrimination, as well as other rights such as the right to be presumed innocent.
And though Rwandan law acknowledges the right to attorney, this was not the case for the gacaca courts for a multitude of reasons. Firstly, it would have been an impossible feat, considering the sheer number of individuals on trial who required lawyers. Even when possible, speed was prioritised. Secondly, the judges who presided the trials may have been influenced by lawyers owing to their legal backgrounds. Thirdly, community members watching trials would have provided safeguards to individuals, possibly falsifying events as they could openly speak as witnesses. Lastly, it was suggested that such communal approach — void of any lawyers — would have promoted the ownership of a community’s justice, salient for a nation surrounded by animosity.
On the other hand, although the presumption of innocence for those standing trial is enshrined in Rwanda’s Constitution, it was also not a requirement within the gacaca courts. Rwandan officials and media, purportedly pro-RPF, had often labelled persons as guilty even prior to the conclusion of trials. This has been criticised as influencing judges to already presume one as guilty at the beginning of trials — and this problem was only exacerbated in high-profile cases. Such niggling combination of factors had affected the optics, legitimacy, and impartiality of the gacaca courts.
There exists another conflict between the gacaca courts and conventional courts. To illustrate this, Article 93 of Organic Law N°16/2004 introduced a provision stipulating:
Such provision implied that if a conventional court’s ruling were to have contradicted a gacaca court decision, it would not be referred to the Supreme Court of Rwanda, but rather the gacaca Court of Appeal. Double jeopardy arises as a risk here, as cases adjudicated by a conventional court may be raised once more within a gacaca court ‘even after the deadline for appeal has expired in the conventional courts’.
With that, the amalgamation of the three non-adherences to fundamental principles of criminal trials can be viewed in two perspectives. Firstly, it can be criticised as a poor execution of justice in criminal sentencing. These three principles are indeed integral to ensure that those facing potential punishments are protected from arbitrariness, and are not disadvantaged at the onset of a trial. Secondly, it can however be defended that the departure from these principles within gacaca courts were necessary due to its communal nature. One may posit that it would be impossible for high profile cases to not receive presumptions of guilt by members of community, as the crimes were visceral and permanently scarring. Simultaneously, it would have been difficult to acquire an experienced trial judge to reside over the case due to a scarcity of judicial resources at the time.
Even so, such discourse does not justify the enabling of a legal loophole which may result in double jeopardy, as the 2004 law itself was not accompanied by any justifications. Thus, while the departures may have facilitated communal justice and expedited the process of reconciliation, it has unfortunately placed trialed individuals in a vulnerable and precarious position.
C. Victor’s Justice in Rwanda?
The modern-day gacaca courts were an adaptation of its’ traditional form, galvanised by the incumbent RPF. Though, throughout the implementation of the gacaca courts, it was unfortunately riddled with factors of ethnicity, antithetical to rebuilding a nation, naturally receiving accusations of being Tutsi-centric. During a gacaca general assembly, some communities were instructed to demarcate those killed as part of the genocide, and those killed by the incumbent government. It was further posited that Hutu individuals faced disproportionate treatment in the gacaca courts, such as an increased likelihood of conviction from genocidal crimes whilst simultaneously facing harsher punishments for pillaging.
The discriminatory framing of Hutus by the RPF cannot be understated. In some instances, mere patrolling by the Hutu had led to some being deemed guilty of participation within the genocide, regardless of whether they had actually killed. The implications of this are severe, considering a guilty verdict has two impacts. Firstly, a guilty verdict excludes individuals from holding public office — resulting in disproportionate ethnic classes within positions of governance or power, permeating a systemic problem in the long-term. Hence, macro-political decisions possibly affecting the trajectory of the nation would be decided with little-to-no diversity. Secondly, as many communal members would have attended the trials in gacaca, it curated a narrative wherein an individual’s ethnicity would increase the likelihood of being a perpetrator of genocide.
Though the previous analysis of a gacaca’s structure indicated that there were guidelines in place — uniformising the mechanism of sentencing and election of judges likely to be impartial — one may question how such instances of Hutu victimisation remained occurred.
To begin, the jurisdiction of the gacaca courts was to hear disputes between 1st October 1990 and 31st December 1994 — a time period which largely excluded many of the Tutsi-RPF affiliated attacks. Furthermore, a chilling effect was cast upon those who recognised these discrepancies. Should a Hutu individual speak out against the gacaca system, they would have been perceived by their community and the RPF as either being sympathetic to genocide perpetrators, or as a threat of wishing to reinstate Hutu governance. The implicit stifling of freedom of speech had also occurred, whereby fear was scattered amongst journalists, following threats that ‘the Rwandan government could make life unpleasant’ for them.
As such, the stifling of critique against the gacaca courts along with the timeframe that excludes a majority of Tutsi violence is a strong indication of a nation’s narrative and culpability being dictated by a victor. At this juncture, the innovative system put in place had ambitiously dealt with the overload of cases, reducing the burden of national courts. Be that as it may, this must be juxtaposed to whether justice was achieved in the court; perhaps the gacaca courts were merely a smokescreen to conceal victor’s justice. However, a fair evaluation must also take into account the alternatives present.
III. ALTERNATIVES TO GACACA
Aside from Rwanda, various efforts were placed in other post-conflict societies. This segment will henceforth evaluate the efficacy of such alternative measures, with reference to the Rwandan context.
A. Truth and Reconciliation Commission
Post-apartheid South Africa sought to depart from its structural oppression targeted towards non-white citizens. This was racialised segregation that left many in economic deprivation, violence, and ultimately, destitute circumstances. Employed as a mechanism to bring forth a harmonious multicultural society, the Truth and Reconciliation Commission (‘TRC’) wished to utilise ‘truth’ as a form of justice. This was to acknowledge past sufferings, facilitating reconciliation between aggrieved parties.
A salient feature of the TRC was a ‘carrot-and-stick approach’, in which perpetrators of violence were promised amnesty should they provide detailed recounts of the committed atrocities. The converse was to threaten prosecution for those who remained silent but were found to be guilty. However, thousands of purported victims had yet to come out, in addition to the majority of perpetrators remaining silent, ultimately affecting the efficacy of the system.
Though the author acknowledges that the TRC is nuanced and complex, such conceptual description is significant in the debate of whether it may be adapted in Rwanda. Yet, a literal comparison cannot be made as South Africa’s TRC was utilised in a context distinguishable from Rwanda — as the former dealt with institutionalised racism as opposed to the latter’s genocidal nature of conflict, coupled with internal power struggles. Further, the TRC generally held international public hearings via separate committees which were largely centralised, distinct from Rwanda’s decentralised communal courts. The centralised nature of the TRC was funded by an annual budget of USD 18 million annually, with around 28,000 applications being heard — starkly different from the estimated 850,000 individuals who sought justice from the gacaca. Hence, it would be disingenuous to juxtapose the TRC and Rwanda in a literal sense, as the costs incurred by Rwanda would be at best unachievable and at worst unrealistic.
Conceptually, the TRC’s mechanism of truth and amnesty is worth pondering. Though the gacaca courts also sought to have communal healing via truth-telling, punitive measures such as imprisonment and community service were present. Had the gacaca courts utilised amnesty as a measure for nation-rebuilding, it is foreseeable that most standing trial would have been more inclined to confess to the whole nature of their crimes. However, such truths could still be present even with punitive measures, as members within that locality could dispute recollections submitted by witnesses and alleged perpetrators. Rather, even the TRC’s shortcoming — lax participation — might not have been present in Rwanda, as large fines were imposed onto Rwandans should they have not attended the gacaca sessions, regulated by an attendance booklet given by authorities.
Though overall, the mechanism of amnesty may not have been suitable for Rwanda’s context. This is because the RPF, who instated the gacaca courts, may have been perceived by victims as attempting to sweep their atrocities under a rug via amnesty. Such reaction is distinct from the TRC, overseen by Nelson Mandela and Desmond Tutu, who largely represented the victims in the apartheid era. Secondly, the usage of amnesty for a largely fractionalised nation would have been viewed as dismissive towards the large number of victims of sexual violence, murder, and theft. Rather, the diverse forms of punishments available to an inyangamugayo would instead be far preferable.
Hence, amnesty in South Africa’s context was a ladder for nation building, but amnesty in Rwanda’s context would have instead been perceived as a pit.
B. Khmer Rouge Tribunal
Located in Cambodia, this tribunal was formed via a collaborative effort between the Royal Government of Cambodia and the UN. Known as the Extraordinary Chambers in the Courts of Cambodia, this tribunal was tasked with adjudicating over ‘senior leaders and those most responsible’ for crimes committed during the Khmer Rouge regime.
For context, the Khmer Rouge regime was infamous for ruling over Cambodia with an iron fist in the late 1970s. Following the Cambodian Civil War — in which Khmer Rouge had emerged victorious — the regime was notorious for its direct complicity in the deaths of over two million people. Those deceased were either ‘enemies’ of the state or victims of starvation and fatigue. That being said, the tribunal was successful in trying various leaders of the Khmer Rouge, including the Khmer Rouge’s second-in-command and the infamous Comrade Duch, who oversaw extermination in the S-21 death camp. However, when juxtaposing the gacaca courts with the Khmer Rouge Tribunal, it is still submitted that such transitional justice mechanism would have been inapplicable to Rwanda for two reasons.
Firstly, although the Khmer Rouge Tribunal may have resembled the ICTR, in its aims to judge high-profile, human rights violation cases, the Khmer Rouge Tribunal is distinct as it primarily trialled those within the oppressive regime. Yet, the ICTR had fundamentally even failed to prosecute the RPF and its leader, Paul Kagame. Another noticeable difference in timing must also be discussed. The RPF ruled over Rwanda when the ICTR was formed, whereas the Khmer Rouge regime had faltered when Cambodia’s tribunal was established. Perhaps the difference in timing could be attributed to such discrepancy between the two tribunals.
As alluded to earlier, the ICTR was insufficient in terms of time and resources to have formal trials for each and every perpetrator, and such factor may have too, resulted in the Khmer Rouge Tribunal’s inapplicability. The Rwandan genocide resembled a civil war with atrocities being committed by both sides of the war. Yet in contrast, the Khmer Rouge’s violence was institutionalised by one specific regime. Meaning that Cambodia’s context required a tunnel vision on those in the Khmer Rouge, but Rwanda’s need for justice could not have been limited to several ‘high-profile’ individuals, due to its sheer number of perpetrators. Hence, Cambodia’s method of transitional justice would not be nuanced to Rwanda’s context.
IV. CONCLUSION: RWANDA IN THE PRESENT
Overall, the Rwandan genocide was a unique, horrific instance in history. The gacaca courts were innovative, but is plagued with various criticisms. A factor that must be given prominence is its context, that is, a seemingly insurmountable number of cases that had to be tried with scarce resources. It is then concluded that though the gacaca courts was the best mechanism to facilitate justice theoretically, it had left many with dissatisfaction in reality.
The strongest critique is victors’ justice being present. Unfortunately, the present indicates a bleak trend stemming from such criticism. The Forces Démocratiques Unifiées (‘FDU-inkingi’) opposition party had members mysteriously disappearing or found deceased. Signs such as strangulations and stab wounds were discovered. The RPF has been riddled with criticisms of democratic backsliding. An example of this was the amending of the Rwandan Constitution, enabling President Kagame to run for elections despite his term limit expiring in 2017.
This is coupled with the National Electoral Commission (‘NEC’) being perceived as a puppet to the executive due to its officials being affiliated to the RPF. The lack of investigations by the RPF when electoral offences are made and the NEC actively curtailing election observers in various stages of the electoral process further aggravate this matter. Moreover, evidence of the arrest of opposition candidates and supporters, denial of registration for opposition parties, and the presence of ruling party agents in polling stations further feed into a structural issue in Rwanda — i.e. the RPF’s chokehold under the guise of a democracy.
It would be impossible to ascertain whether the current problems plaguing Rwandan democracy is inextricably caused by the gacaca courts. However, it is reasonable to draw a link that the gacaca system has entrenched victors’ justice, and that has proliferated recently.
Ultimately, the legacy of the gacaca courts will continuously be polarising. An inventive form of justice unbeknownst to many, that was employed to solve an urgent problem, but could have been executed significantly better. Nonetheless, such implications of the gacaca courts that purportedly transitioned a nation away from discord may have aided the modern day control the RPF currently wields.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
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