RWANDA'S GACACA COURTS: A PRELIMINARY CRITIQUE

Abstract

Just over a decade after the 1994 genocide, over 1,000 accused languish in Rwandan prisons. The International Criminal Tribunal for Rwanda and the nation's domestic courts have struggled to bring them to trial. In response, the Rwandan government has embarked on an experiment in mass justice: the gacaca courts. The new courts are inspired by traditional dispute resolution mechanisms. The judges are elected by popular vote in their cells to hear cases such as murder, assault and property offences. The system permits appeals (except for property crimes), though not to the domestic courts. The setting is less formal than criminal courts and promotes confessions from perpetrators and forgiveness from survivors. Coupled with this process are two related schemes for victim compensation and community service for those convicted. This article examines these courts from the perspectives of retributive and restorative justice, within the Rwandan context. In practice, the gacaca courts embody both principles, as well as their tension. The judges are lay persons, yet are engaged in complex legal adjudication. The accused have no right to legal representation, nor an appeal to the domestic courts. More importantly, survivors are marginalized by the process as the practical and political pressures on the Rwandan government have made them opt for expediency (more and faster trials) over reconciliation (survivor compensation and manifest regret by the perpetrators). The gacaca courts hold out much promise of reconciling a deeply divided society, but redressing the needs of victims must become a priority.

The meaning of reconciliation and development in post-genocide Rwanda.

“…Such an extraordinary structure is influenced by the GoR's estimation that in the aftermath of mass violence, a formal legal system alone would not be capable of bringing a massive number of genocide perpetrators and suspects to trials promptly, particularly when adequate judicial facilities and human resources were extremely lacking (Apuuli, 2009, p. 12;Boctor, 2009, p. 104). By 1999, approximately 100,000 to 125,000 detainees were being held in jails designed for only 30,000 persons, living in squalid and unsanitary conditions while they awaited trials (Boctor, 2009;Clark, 2009Clark, ,2010Daly, 2002;Kirkby, 2006;Longman, 2006a;Megwalu & Loizides, 2010; National Service of Gacaca Jurisdictions [NSGJ], n.d.a; Sarkin, 2001;Steward, 2009;Uvin & Mironko, 2003;Vandeginste, 2001;Waldorf, 2006Waldorf, ,2009Zorbas, 2004). In order to accelerate the legal proceedings to meet the GoR's ambitious goal of prosecuting all genocide suspects, the establishment of gacaca courts, a concept that reflected traditional conflict resolution mechanisms used by local communities was conceived, and instituted by the Organic Law in 2001 (Apuuli, 2009;Sosnov, 2008).…”

“…The number of women's organizations alone reached more than 15,000 in 1999, 50 of which were national in scope (United States Agency for International Development [USAID], 2000, p. 4). In representing genocide survivors, one well-known organization is IBUKA ('remember' in Kinyarwanda) (Cook, 2006;IBUKA, n.d.;Kirkby, 2006). IBUKA embraces smaller local NGOs which serve survivors and other genocide-affected populations as its members and focuses on promoting justice, memorialization of the victims, assistance to genocide survivors, and peace-building (IBUKA, n.d.).…”

“…In reality, the inefficiency and bureaucratic manners of processing cases has not sufficiently alleviated the Rwandan government's burden of conducting a large number of trials, but instead aggravates the Government's, and some Rwandans, view and attitude toward the court itself (Kirkby, 2006;Zorbas, 2004). This challenge, and other dynamic interactions between the actors will now be given consideration in the analysis portion of this chapter.…”

“…and December 31,1994 (Boctor, 2009;Kirkby, 2006;Zorbas, 2004). The GoR, however, perceives that such a short period for prosecution would allow genocide suspects and wrongdoers to escape, allowing impunity to prevail (Habimana, 2000;Uvin & Mironko, 2003).…”

“…Secondly, the maximum penalty for those found guilty by the ICTR is a life sentence, while capital punishment could be applied to suspects under Category One in the domestic courts until 2007, when the death penalty was abolished (Betts, 2005;Boctor, 2009;Kirkby, 2006;Uvin & Mironko, 2003). Furthermore, the conditions of the ICTR prisons are not nearly as cramped, and are more comfortable and 'luxurious' for the prisoners than the conditions found in domestic jail cells (Lambourne, 2001;Vandeginste, 2001;Waldorf, 2006).…”