Critique of sources' perspectives on justice through gacaca

How compelling are the official, popular and critical interpretations of justice through gacaca? This analytical section argues that some of these sources offer useful interpretations of the form of justice, whether retribu­tive, deterrent or restorative or some combination of all three, which gacaca embodies and the means by which it pursues justice.

First, concerning the form of justice, some detainees and commenta­tors such as Ngendandumwe argue convincingly that restorative justice is a key element of the gacaca process. The government and much of the population, particularly survivors, hint at the presence of restorative just­ice elements in gacaca, but they rarely discuss explicitly gacaca's attempts to shape the punishment of genocide perpetrators towards more recon- ciliatory ends. At gacaca, there is an undeniable moulding of punish­ment towards restoration, which the government should articulate more readily, especially to better prepare survivors for the personal and collect­ive impact of reconciliatory processes at gacaca. A key element of trad­itional gacaca persists in the current context and provides a vital insight into how gacaca is designed fundamentally to pursue restorative just­ice: the need for punishment to incorporate processes that facilitate the reintegration of convicted perpetrators into their old communities. At gacaca, detainees reintegrate more rapidly as a result of plea-bargaining; in many cases, part or whole sentences for those found guilty will be commuted to community service.

While Drumbl, Ingelaere and Waldorf are right to question the extent to which gacaca's retributive elements have overridden the restorative, these concerns are overstated. While many gacaca trials have grown more formal and legalistic over time, in most communities this has been a rela­tively late development, occurring mainly in Category 1 cases. Before this, many gacaca hearings displayed the high degree of discursiveness discussed in the previous chapter, in which participants combined discussion of legal and non-legal truths in the same setting, pursuing a range of personal and communal objectives. Therefore, through most of its phases, gacaca has not functioned exclusively �according to the logic of criminal trials' but rather has displayed a hybridity of retributive and restorative functions and has contributed substantially to rebuilding fractured bonds.

An important element of gacaca trials also responds to Waldorf's con­cerns regarding the imposition of collective guilt on the Hutu majority. Gacaca has consistently individualised guilt by requiring individual sus­pects to face justice in front of their communities. As discussed above, gacaca's high rate of acquittals also shows that the process has been successful at exonerating many accused individuals. Furthermore, the relatively lenient sentences handed down to many convicted perpetra­tors suggest that, rather than constituting an attempt by the government to criminalise Hutu, gacaca has generally erred on the side of softer, pragmatic justice for perpetrators, which has proven unsatisfactory for many genocide survivors.

Second, while I believe that gacaca has proven effective as a mode of restorative justice in many communities, the sources analysed here express problematic notions of gacaca's justice methods. Furthermore, they neglect several important features of restorative justice through gacaca that are identified here. Regarding the virtues of gacaca's partici­patory approach to justice, particularly the importance of confession and apology for rebuilding relationships, some sources overstate the ease with which such actions will facilitate restoration. Some detainees and com­mentators such as Harrell assume that the community, and especially survivors, will readily accept perpetrators' confessions to, and apologies for, their crimes and that these actions will quickly build trust between participants in gacaca. These sources then assume that this sense of trust will help rebuild bonds destroyed during the genocide. Such a view is too optimistic and fails to account for the deep, mutual distrust and resent­ment among many suspects, survivors and their families. As highlighted in Chapter 4, many survivors doubt whether suspects will tell the truth at gacaca and whether their confessions and apologies will be sincere. Particularly given the large reduction in sentences that some suspects can obtain through plea-bargaining, many survivors believe that sus­pects have only instrumental motives for confessing and apologising. Some suspects' statements regarding the personally instrumental ben­efits of confessing to their crimes, as well as practical experiences such as the perjury case in Bugesera discussed in Chapter 7, only increase sur­vivors' scepticism.

Suspects, commentators and the minority of survivors who articulate this view, are undoubtedly right to argue that public confession and apol­ogy can help build trust in the community. However, they fail to account for inevitable difficulties in building trust, given the fear and suspicion that prevail in communities after the genocide. It will take many sur­vivors a long time to trust perpetrators sufficiently to believe that they can engage actively in restorative practices and rebuild relationships with them. In many cases, gacaca simply provides an initial step in this process, allowing detainees to publicly confess their crimes in the hope that this will engender a sense of openness and trust with survivors. In turn, this sense of trust may lead to a degree of restoration long after the gacaca process is completed, when survivors see further proof of per­petrators’ sincere desire to rebuild relationships.

My observations of gacaca hearings and interviews with participants also highlight that much trust in gacaca has been undermined by con­stant changes to the Gacaca Law. In particular, major reforms to gacaca - such as altering the categorisation of genocide crimes and the matrix of sentences, decreasing the number of administrative levels where hearings take place and the number of judges, and moving Category 1 (including sexual violence) cases from the national courts to gacaca - have caused great confusion in many communities. �Sometimes we struggle to keep up with the law’, said Yves, a gacaca judge in Kacyiru district of Kigali Ville in 2006. �There are so many changes that affect us and sometimes we can’t explain everything to the people because we don’t understand it ourselves.’^[576] While some changes to the Gacaca Law have helped stream­line the process and responded to particular problems that have arisen, as discussed in Chapter 2, the constant alteration of fundamental aspects of gacaca has often undermined the population’s comprehension of and confidence in the justice process and dulled its restorative potential.

Some sources’ argument that community service as a form of pun­ishment will help automatically facilitate restoration is also problematic. Although Harrell’s claim that something more than the mere return of detainees to the community is necessary for restoration, he assumes, without sufficient substantiation, that community service will lead inev­itably to this outcome. Many of the problems regarding community ser­vice as punishment echo survivors’ suspicions of gacaca’s plea-bargaining system as a whole, especially many survivors’ view that community ser­vice is too lenient a form of punishment for many perpetrators.^[577] If survi­vors do not believe that perpetrators have received a level of punishment

commensurate to their crimes, then feelings of resentment and distrust will increase, destroying any chance of these parties rebuilding relation­ships. Viewing gacaca as delivering meagre justice to convicted perpetra­tors, many survivors question the government’s dedication to those who suffered the genocide at first hand. �The government doesn’t really care about survivors’, said Marceline, a thirty-five-year-old survivor in Ngenda district of Kigali Ngali province. �They have forgotten us. The genocid- aires are all back here now and we can do nothing about it. We have to live with those who killed our families, those who live freely here now and can get on with their lives as if nothing happened in the past.’^[578]

Similarly, in western and northern Rwanda, many survivors question why large numbers of repatriates from the FDLR and other Congo-based Hutu rebel groups, many of whom are also suspected of committing genocide crimes in 1994, are allowed to return to their home commu­nities without passing through gacaca or other justice institutions.^[579] On the other hand, many returned prisoners and their families, while acknowledging that gacaca’s sentencing scheme has been quite favour­able, also believe that survivors have flourished disproportionately since the genocide because of the government’s socio-economic favouritism.

Employing community service to facilitate restorative justice also requires detainees to participate in projects that the broader commu­nity views as beneficial and not simply as means for the government to punish detainees without having to return them to already crowded prisons. Community service contributes most to restoration when detainees work side by side with survivors, deepening their sense of engagement that begins at gacaca. This engagement must be carefully mediated so that close interactions between perpetrators and survivors do not undermine restorative processes and perhaps incite further vio­lence. In many of my interviews, however, it is clear that community service often takes place far from perpetrators’ homes and involves little direct contact between perpetrators and survivors. PRI and IRDP have also identified this trend in their observations of the TIG process.^[580] When community service entails minimal interactions between per­petrators and survivors, and if few direct material benefits from labour programmes accrue to survivors, this mode of punishment loses much of its restorative value.

Third, the view expressed mainly by Rwandan commentators such as Karekezi and Ngendandumwe that negotiated justice entails forms of engagement at gacaca that are inherently restorative is problem­atic for reasons discussed elsewhere in this book. These commentators rightly argue that negotiated justice is important for helping parties come to terms with the causes of their conflicts, to find solutions to these problems and, by collaborating in these ways, to rebuild rela­tionships. However, the ways in which Karekezi and Ngendandumwe interpret negotiated processes of justice overlook the extent to which gacaca judges and other leaders heavily mediate this negotiation. More importantly, they neglect the degree to which negotiated processes require mediation to ensure that intense engagement does not further inflame tensions but instead facilitates restoration. Further complicat­ing matters, negotiation is not inherently restorative. As discussed earl­ier, the negotiation by many gacaca judges in recent years, for example, has amounted to unduly hastening trials, in an attempt to complete the genocide backlog as quickly as possible. This has often resulted in truncated communal discussions during hearings and increased formal­ism, limiting meaningful engagement among participants and thus the scope for rebuilding relations. When directed in ways that acknowledge the very real barriers that individuals face when deciding to engage with others, negotiation may help rebuild relationships between participants in gacaca. Without mediation, however, negotiation may simply lead to further acrimony and violence. These observations underscore once again a key tension within gacaca as a whole, namely between the need for oversight and mediation and the importance of communal owner­ship, confidence and engagement.

This section has argued that there are significant problems with dif­ferent sources’ views on restorative justice through gacaca. These sources also neglect one further punitive process that, if mediated effectively, could contribute to restoration: compensation or restitution as punish­ment. Few sources analysed here recognise the restorative role of com­pensation or restitution through gacaca. In the case of property crimes, the Gacaca Law requires convicted perpetrators who have the necessary means to return looted goods.^[581] Where the looted property is no longer available, perpetrators must provide �repayment of the ransacked prop­erty or [carry] out... work [to the value of] the property to be repaired'.^[582] As mentioned in Chapter 5, the government has also established a Compensation Fund for survivors, which seeks to provide basic health and educational services as a form of restitution after the genocide. Neither the Gacaca Law nor public pronouncements by government officials, however, explicitly connect these compensation mechanisms with notions of restoration.

As we saw earlier regarding gacaca and economic development, many survivors express great confusion over exactly how they can access restitution from the Compensation Fund. Few survivors appear to have so far benefited from this scheme. Ndangiza conceded in 2008 that gacaca's reparations process had been largely ineffective, mainly, she argued, because there had been paltry international assistance to the Compensation Fund.⁶⁸ Nonetheless, given a more effective mech­anism, compensation - particularly when it involves direct restitution from perpetrators to survivors - can contribute to restorative justice. Compensation as retribution can punish perpetrators in a public way and at a level commensurate to their crimes. In many instances, the Gacaca Law requires perpetrators to personally return looted goods to survivors or to participate in direct forms of community service, such as rebuilding victims' houses or replanting their gardens, which carry greater meaning than general labour programmes. By combining pun­ishment of perpetrators with tangible material benefits for survivors - which are particularly important given the population's view, noted earlier, that overcoming poverty is its biggest challenge after the geno­cide - compensation as a form of punishment will win favour among many survivors. Compensation may therefore help generate trust and goodwill towards convicted perpetrators, which constitute a necessary foundation for restoration.

CONCLUSION

Weighing the views of the sources analysed here and evidence from gacaca's practical operation, we can conclude that gacaca has generally succeeded in achieving retributive justice, as it has heard and weighed the evidence in hundreds of thousands of genocide cases and convicted and punished those found guilty. As expressed formally in the Gacaca Law, gacaca constitutes a detailed system for punishing genocide per­petrators that relies on few external institutions or processes to achieve retributive justice.

Pursuing deterrent and restorative justice through gacaca has proven more complicated. I have already discussed in the section on peace the limitations of punishment for successfully deterring future criminals, both in a general sense and specifically in the Rwandan context. It is questionable the extent to which potential perpetrators of mass crimes such as genocide will be deterred by the threat of punishment. Deterring future mass crimes, particularly when they are ethnically motivated, is likely to require confronting the deepest causes of ethnic antagonisms, rather than simply punishing those guilty of past crimes. Therefore, while punishment at gacaca contributes to the deterrence of future criminals, other, longer-term processes are necessary to achieve this end.

Restorative justice through gacaca also constitutes a complicated practical pursuit because it relies heavily on unpredictable negotiations between individuals and groups during and after gacaca, although in this regard gacaca has already proven more successful than in the pursuit of deterrent justice. Similar to gacaca's pursuit of positive peace, gacaca provides an important starting point for restorative justice, especially by returning so many convicted perpetrators to the community, initiating a process of restoration that must continue long after gacaca is completed. Wider social and political developments in turn heavily influence this ongoing process. Restoration requires maintaining trust between parties previously in conflict, a sense of trust that fluctuations within gacaca and negative external developments quickly undermine.

The need to carefully balance retributive, deterrent and restorative pursuits is also a difficult practical issue for restorative justice. Because many survivors believe that perpetrators have not received the degree of punishment they deserve, their sense of trust in gacaca and in those with whom they interact during hearings has decreased. Without this popu­lar confidence, gacaca in some communities has struggled to achieve restorative justice.

The ways in which gacaca pursues justice after the genocide displays perhaps more than any other objective the unique nature of gacaca in the realm of transitional justice institutions. In particular, gacaca's hybrid combination of formal and negotiated processes that aim at retribu­tive, deterrent, and ultimately restorative, ends highlights the holistic approach that gacaca takes to responding to the legacies of the geno­cide. Gacaca embodies the belief that to punish perpetrators in the after­math of conflict is not enough if Rwandans are to rebuild individual relationships and to reconstruct the entire social fabric. Punishment is a necessary initial response but it must be shaped towards more con­structive, reconciliatory goals. Gacaca's pursuit of retributive, deterrent and restorative justice shows how legal processes can contribute mean­ingfully to non-legal ends, for example as punishment, handed down in a negotiated fashion, and taking the form of community service or restitu­tion, can help rebuild broken relationships.

Thus, gacaca gives substance to President Kagame's claim that �[w]e cannot talk of reconciliation without justice in the context of Rwanda.'^[583] Most existing transitional justice institutions focus on either legal or non-legal responses to violence, seeking either to punish perpetrators or to reconstruct broken relationships while offering amnesties to per­petrators. Gacaca's pursuit of restorative justice entails responding to both legal and non-legal concerns after the genocide. Most commen­tators on gacaca have focused on only one aspect of gacaca's nature; human-rights critics, for example, focus only on gacaca's legal, retributive or deterrent responses. Such an emphasis misrepresents gacaca's hybrid- ity, failing to acknowledge the ways in which gacaca punishes perpetra­tors (thus fulfilling a necessary moral obligation to respond adequately to crimes and the expectations of survivors), while delivering justice cre­atively to achieve wider, restorative outcomes.