Commentators’ perspectives on justice through gacaca

Commentators express a wide range of interpretations of justice through gacaca. Most commentators, and especially human-rights critics of gacaca, emphasise the need for retributive or deterrent, rather than restorative, justice.

On the rare occasions that non-Rwandan observers discuss restora­tive justice, it is usually to contrast this unfavourably with retributive or deterrent justice, as exemplified by Kenneth Roth’s and Alison des Forges’ critique of Helena Cobban cited in Chapter 3. British commen­tator Elizabeth Onyango from African Rights meanwhile argues that �sometimes in gacaca, justice will have to be diminished so that people can pursue reconciliation.’^[567] In this way, human-rights commentators seek to dissolve any possible link between retributive or deterrent just­ice and notions of restoration or reconciliation. Some critics argue that processes of retributive, deterrent and restorative justice manifest in gacaca - although most of these authors focus solely on the retributive and deterrent - but that these forms of justice are mutually exclusive; that is, if gacaca is to pursue reconciliation through justice-related means, then it will sacrifice retributive or deterrent justice and thus vio­late certain individual rights.

There are several exceptions to these views among non-Rwandan commentators.

the substance of encounters [during hearings] is handled according to the purely prosecutorial logic which limits the discursive aspects normally connected with ritual doings or the dialogical and healing dimension of truth-telling processes. The ongoing Gacaca activities demonstrate only a limited potential to evolve towards trust between ethnic groups... This results from the fact that the Gacaca courts function according to the logic of criminal trials and not as small truth and reconciliation com­missions. In that way, the Gacaca process perpetuates the cleavages it is supposed to eradicate.^[570]

Lars Waldorf meanwhile believes that by encouraging hundreds of thou­sands of new accusations against genocide suspects and the prosecution of high-profile critics of the RPF such as Munyakazi and Theunis, the government has �politicized] gacaca’ to such an extent that it constitutes �the potential imposition of collective guilt on the Hutu majority’.^[571]

As we saw in Chapter 5, most non-Rwandan commentators interpret the processes by which gacaca should pursue retributive or deterrent justice as necessarily formal. Because these commentators’ overriding concern is for gacaca's capacity to protect individual rights, they argue that punishment at gacaca must be handed down according to predetermined legal statutes that safeguard those rights.

Harrell is one of the few non-Rwandan commentators to argue that formal processes at gacaca may contribute to restoration. He argues that the use of community service to punish some convicted perpetra­tors shows how gacaca may shape retributive or deterrent justice towards more restorative ends. As perpetrators participate in community labour programmes, Harrell argues, often working side by side with survivors, such interactions may - similarly to forms of communal collaboration during gacaca hearings - allow perpetrators and survivors to learn to work together and thus facilitate reconciliation. Harrell claims that it is not simply reintegration but rather the active participation of detainees in community labour programmes, and their engagement with the com­munity, that contributes to restorative justice.^[572]

PRI, which has conducted in-depth research into the function and likely outcomes of community service through gacaca since its incep­tion, raises questions over the connections between community service and restoring relationships. PRI argues that community service through gacaca is in part designed to contribute to �the social rehabilitation of detainees’, which appears to entail a fundamentally restorative pro- cess.^[573] PRI also argues, though, that many survivors will not perceive community service as a sufficient form of punishment for genocidaires, echoing my respondents’ views above. On the question of gacaca’s use of community service as punishment for genocide crimes, PRI quotes various survivors, one of whom states, �It is inconceivable that a person who has killed should benefit from a reduced sentence.

Most Rwandan commentators argue that justice through gacaca should be interpreted as both retributive and restorative, consistent with many of their views concerning gacaca's pursuit of positive peace and recon­ciliation discussed elsewhere in this book. Jean-Claude Ngendandumwe, Coordinator of the Catholic Peace and Justice Commission, describes a common link between retributive and restorative justice espoused by Rwandan commentators:

Justice at gacaca is very important for reconciliation... Justice at gacaca is a form of state-controlled revenge, and this lessens the need for revenge by the community... At gacaca everybody is watching and talking. The justice at gacaca is communal. It is not handed down by a judge. The way everyone takes part in doing justice at gacaca means that reconciliation is possible.^[575]

Ngendandumwe argues that punishment through gacaca is necessary because it undermines a desire for revenge that he believes is prevalent in the community. Punishment alone, though, he argues, is not enough: as it is handed down in a communally determined fashion, the dialogue and collaboration that this entails is important for rebuilding fractured relationships.