Wednesday, February 29, 2012

Rwanda: The Closing of the Gacaca Courts and the Implications for Access to Justice

Source: ISS

The Closing of the Gacaca Courts and the Implications for Access to Justice in Rwanda

Naomi Kok, Research Intern, Conflict Prevention and Risk Analysis, ISS Pretoria

Rwanda’s traditional mechanism for resolving civil disputes; the Gacaca courts, will officially be closing on the 4th of May 2012. The Gacaca Courts have tried the bulk of Rwanda’s genocide related Rwanda’s traditional mechanism for resolving civil disputes; the Gacaca courts, will officially be closing on the 4th May 2012. The Gacaca Courts have tried the bulk of Rwanda’s genocide related cases. As of July 2012 the International Criminal Tribunal for Rwanda (ICTR)’s main body is also closing and will no longer hear any cases except for appeals, which are to be completed by 2014. These developments raise questions about what avenues will remain open for ordinary Rwandans who have not yet had their cases heard.

It is quite likely that only the elite will be able to use Rwanda’s legal systems, whereas the Gacaca courts are accessible to anyone. While Rwanda has made great strides toward national reconciliation, the government should tread carefully around the issue of the Gacaca and the ICTR closing. If Rwandans feel they are denied justice in 2012, it could lead to the suffocation of what reconciliation has already been achieved.

In 1994 Rwanda witnessed the genocide that left more than 800 000 Rwandans dead, and thousands more displaced. The genocide was initially a plot to exterminate the Tutsi. However, after the largely Tutsi Rwandan Patriotic Front (RPF) led by President Paul Kagame, managed to take control of Kigali and end the genocide, thousands of Hutus fled across the border into the Democratic Republic of Congo, where they still live today.

With the country torn apart, the task of prosecuting the perpetrators of the genocide was enormous. After 1994, Rwanda’s legal infrastructure was severely damaged. The government prioritized regaining the human and material resources of the judicial system, but even so it was not able to absorb the number of cases awaiting trial. The prospect of prosecuting thousands of civilians and almost the entire former civil service, is what made Rwanda look towards the Gacaca courts.

In Kinyarwanda the word for reconciliation is ubwiyunge, which refers to the resetting of a broken bone. This is what the Gacaca aims for - healing between victims and perpetrators. In the Gacaca courts people from the community come together and the elders hear the cases. Through this system category two, three and four accused criminals (people accused of acts of genocide, causing grievous bodily harm and looting) were prosecuted. All genocide crimes and genocide related crimes could be tried in the Gacaca courts, except if they were committed by government officials or top level planners, in which case they fall under the ICTR jurisdiction.

The Gacaca courts offer Rwandans a form of participatory justice, where they can come together as community members, and have the elders hear the cases. Moreover, Gacaca court elders can give sentences of up to life imprisonment, making it a suitable judicial mechanism to try crimes as severe as acts of genocide. In the Gacaca court, the victims watch as perpetrators are sentenced by people they know, instead of by foreign judges. This factor of physical proximity has a great impact of giving Rwandans a tangible sense of justice. The Gacaca courts also provide the opportunity for grievances to be aired in public, which is vital in a country where victims are living side by side with perpetrators. There is a possibility for compensation, where perpetrators could make a gift of a cow to their victims, for example, to aid in reconciling the two parties. Perhaps most important for healing, the Gacaca offers victims an opportunity to ask the perpetrators about the location of their relatives bodies. In Rwandan society, it is important to visit the graves of ones relatives. Finding out where the bodies of ones murdered relatives are, provides a sense of closure. In this way the Gacaca courts gave something to ordinary Rwandans that no other court could.

In addition to the traditional Gacaca courts and the ICTR, Rwanda does have its own functioning judicial system. However, the Rwandan courts mainly deal with high profile cases such as those of genocidaires that are extradited to Rwanda. Also, the Gacaca courts do not hear any cases in which a Hutu accuses a Tutsi of crimes during the genocide. In fact, it is only the ICTR that would hear such cases.

In Rwanda, the genocide is officially seen as genocide against the Tutsi. However, in any conflict situation, there will be illegal acts committed by members from both sides. Kagame tried to stop the Tutsi revenge attacks on the Hutu after he regained control of Kigali, but it cannot be denied that these attacks took place. National reconciliation is a high priority for the Rwandan government, and it can only be successful if approached as the reconciliation of all Rwandan nationals. Reconciliation cannot be achieved if only the Tutsi have an avenue through which they can have their cases heard.

In many ways, when a tragedy such as genocide befalls a country, the most constructive thing to do for the people would be to move on. However, the pain for many, many Rwandans is still all too real. There is even a phrase for the people who were traumatised in the genocide, they are called the bapfuye buhagazi, the walking dead.

In a country where there is a taboo on identifying someone as either Tutsi or Hutu, and where journalists may be imprisoned when speaking of the genocide ‘in which Rwandans killed one another” instead of the genocide ‘in which Tutsi were killed by the Hutu,’ there is an obvious need for reconciliation. A refusal to acknowledge that there are Hutu and Tutsi Rwandans living in Rwanda and that people from both sides make up the bapfuye buhagazi is far more of a danger to national reconciliation than the criminalised act of allegedly denying the genocide.

The ICTR, even though it has found many genocidaires guilty, has often been a disappointment to Rwandans. Once the Gacaca courts are closed, there will remain a need for Rwandans especially the Hutu who have not had easy access to airing their grievances, to find justice and to be part of the national healing process. If this reality is not faced, then the government would have effectively fuelled the fire that has been raging silently in Rwanda for generations. Rwandans need an avenue to reconciliation, but the refusal to include Tutsi prosecutions into the Gacaca has provided an obstacle to this. The bapfuye buhagazi need to find justice, so life can continue. It is now a crucial time for Rwanda to plan ahead and re-examine its stance on trying genocide related cases. It is also vital that in whatever way the government continues to prosecute crimes related to the genocide, an avenue is provided for Hutus to also make cases against Tutsis. If this is overlooked, national reconciliation will never be achieved, only the suppression of individual sentiments, and this is a danger to the stability of Rwanda.

The closing of the Gacaca without providing any way for Hutus to have their cases heard, will delay justice, and this in turn will delay national reconciliation. Since justice delayed is justice denied, an irreversible setback will be created for Rwanda’s national reconciliation. The time for the end of Gagaca may not yet be here, but the time for the inclusion of Tutsi defendants in Gacaca trials is way overdue.