Commentators’ perspectives on popular participation in gacaca

The critical literature on gacaca displays a wide range of views concern­ing popular participation in gacaca, from a focus on its facilitation of immediate objectives concerning the personal lives of participants to that of broader aims in the national political realm.

First, Rwandan commentators express either a moderate or a far- ranging interpretation of popular participation in gacaca. In more moderate terms, Gasibirege argues that gacaca is above all a �space for communication’ where the population discusses their mutual concerns after the genocide.^[334] Alice Karekezi, Alphonse Nshimiyimana and Beth Mutamba argue, �The ability of gacaca to accomplish its goals of bringing justice, revealing the truth about the genocide, and contributing to rec­onciliation absolutely necessitates the strong participation of members of the local communities.’^[335] Solomon Nsabiyera from World Vision argues that gacaca is important for �overcoming the conspiracy of silence’ that he believes prevails in Rwanda, as a result of survivors’ reluctance to dis­cuss traumatic experiences and because of continued animosity between Hutu and Tutsi.^[336]

In the wider-ranging interpretation, some Rwandan commentators argue that mass involvement in gacaca increases the scope for popular decision-making within the community.

Karekezi argues that gacaca is especially likely to empower women who have otherwise been excluded from the most important social, cultural and political spheres at both the local and national levels.^[339] In the past, women were excluded from being judges or providing testimony at gacaca. In the modernised institution, however, women play a key role both as leaders - constituting between 35 and 40 per cent of judges^[340] - and gen­eral participants. From my observation of gacaca hearings between 2003 and 2010, women overall drive most discussions in the general assembly, expressing their views more forthrightly than men who often have to be cajoled into speaking.^[341] Alice, the gacaca judge in Ruhengeri prov­ince quoted above, echoed this view when she said, �Gacaca is important because it brings everyone together... The women especially talk too much because they are used to talking much more than the men.'^[342] For Rwandan commentators such as Karekezi and Gasibirege, this increased popular involvement is not only important for the pursuit of particular aims within the confines of gacaca but also for greater popular participa­tion in public life more broadly.

While some observers express great enthusiasm for mass participation in gacaca, many commentators - especially non-Rwandan proponents of the dominant discourse on gacaca - are sceptical of it. Many human­rights lawyers express doubts over the ability of a traumatised, divided population to make the sorts of careful, impartial decisions necessary for gacaca to fulfil its objectives. How, these critics ask, can genocide suspects and survivors - each group with its own set of needs and preju­dices - be expected to pursue broader aims of accountability and social reconstruction?

First, many human-rights observers argue that, by involving the popu­lation so extensively, gacaca fails to guarantee legal due process for geno­cide suspects. In granting the community such a vital role in hearing and deciding genocide cases, they argue, gacaca cannot provide judicial mechanisms that are sufficiently transparent and impartial. AI argues, �Since community members both provide the information regarding genocide offences and judge the suspected perpetrators, anything out­side of their active and honest participation nullifies the fairness of gacaca tribunals.'^[343] Such honest participation, most human-rights moni­tors state, is unlikely given the level of distrust and trauma prevalent in the community. If individuals lack confidence in those with whom they interact at gacaca, or if they are too traumatised or afraid, they are unlikely to cooperate in the institution or to pass fair judgments. Many critics argue that gacaca will simply become a form of mob justice.^[344] Gacaca judges, whose role is to mediate hearings, some commentators argue, are also usually the family or neighbours of the suspects and survi­vors who participate in the general assembly. Therefore, they are likely to have vested interests in the outcomes of hearings. The danger of handing down partial judgments is exacerbated by the absence of legal counsel at gacaca.

Over time, non-Rwandan commentators on gacaca have voiced a second major criticism of the emphasis on popular participation in gacaca. Human-rights groups such as AI and HRW have argued that, rather than seeing the population as the central actor in gacaca, we should recog­nise the crucial role played by the Rwandan government. These critics often argue that the state interferes unjustifiably in many gacaca hear­ings, particularly to pressure judges to convict certain suspects.^[345] This cri­tique signifies a shift from the argument above regarding a lack of judicial safeguards, seeing the state rather than the population as the key reason that individual rights and due process may be violated through gacaca. Such concerns were central to HRW's amicus curiae to the ICTR in 2008, arguing against the possible transfer of suspects from Arusha to the Rwandan courts on the grounds that the individuals would not receive a fair trial in Rwanda, as highlighted by state interference in genocide trials in the national courts and gacaca.^[346]

Non-Rwandan scholars such as Bert Ingelaere and Lars Waldorf have also argued that gacaca constitutes a �state-driven, state-owned and top­down process'^[347] and that, in Rwanda's experience, �local justice is polit­ical justice'.^[348] Waldorf criticises the degree of state coercion necessary to compel citizens to participate in gacaca and highlights what he describes as �everyday forms of peasant resistance to state authority represented by many Rwandans' refusal to attend gacaca and therefore low turnouts in many jurisdictions.'^[349] Ingelaere contends that, in the communities where he has observed gacaca,

local authorities generally do not play an overtly active role in the... pro­ceedings but they are always present, together with some security forces, and they have received instructions from higher authorities that they need to monitor the Gacaca's activities closely and write reports. Some strictly judicial tasks such as information gathering have been assigned to the local authorities, with the population and judges only playing a secondary role.^[350]

For these commentators, discussions of popular participation must reflect the practice of state control over the entire gacaca process.