DOMINANT DISCOURSE ON GACACA

How have most commentators interpreted gacaca? Is there a single, over­riding view that drives most critiques of the institution in the existing literature? As mentioned in the Introduction, the study of gacaca is a rapidly growing field and already many detailed and varied accounts have emerged.

The majority of published critiques comes from non-Rwandan obser­vers and draws on a form of human-rights analysis that views justice as the primary virtue by which gacaca should be evaluated. That most non­Rwandan observers of gacaca come from a legal background means they tend to interpret gacaca strictly as a judicial remedy to the legacies of the genocide. Discerning the success of gacaca in terms of social outcomes other than deterrent justice, such as reconciliation, is thus sidelined, ren­dering these virtues as secondary considerations to these forms of just­ice, if in fact they are considered at all.

While most commentators - especially those from human-rights groups such as AI and HRW, whose arguments are explored in detail below - consider justice and the protection of human rights as the pri­mary lens through which to interpret and analyse gacaca, they define justice in a very particular fashion.

According to the current orthodoxy, the most important outcome of the gacaca process is the punishment of genocide perpetrators, which will help eradicate the culture of impunity that many non-Rwandan commentators believe prevailed in Rwanda before and during the geno­cide. In this view, justice will be achieved and gacaca will be deemed successful only when genocide perpetrators have been found guilty and sentenced according to the severity of their crimes. Any failure to mete out punishment to those found guilty of genocide crimes, and to do so according to commonly accepted principles of due process, will render gacaca an unjust and illegitimate institution.

Several examples of human-rights critiques of gacaca illustrate the most common arguments against gacaca. All three critiques assume that gacaca is an institution aimed primarily at formal, deterrent justice. On this basis, they conclude that gacaca is an unjust and illegitimate attempt to deal with the legacies of the genocide.

In a report published in December 2002, AI argues,

the legislation establishing the Gacaca Jurisdictions fails to guarantee minimum fair trial standards that are guaranteed in international treaties ratified by the Rwandese government...

Elsewhere, AI argues that it is

principally concerned with the extrajudicial nature of the gacaca tribu­nals. The gacaca legislation does not incorporate international stand­ards of fair trial. Defendants appearing before the tribunals are not afforded applicable judicial guarantees so as to ensure that the proceed­ings are fair, even though some could face maximum sentences of life imprisonment.^[214]

Five years later, AI repeated similar criticisms of gacaca, namely that it �fails to meet international standards for fair trial and lacks independ­ence, impartiality and transparency’.^[215] HRW echoed this view in 2009, equating gacaca with the US government’s military commissions in Guantanamo Bay: �Human Rights Watch knows of no criminal justice system other than Rwanda’s highly discredited gacaca courts in which hearsay is admitted before a jury of non-lawyers, as would be the case with the revised military commissions.'^[216]

In July 2002, HRW analysts Kenneth Roth and Alison Des Forges pub­lished an article critical of interpretations of gacaca expressed by writer Helena Cobban. According to Cobban, deterrent justice is not gacaca's only function and, for example, �therapy' or the healing of wounds after the genocide for both genocide perpetrators and survivors are also among gacaca's aims.^[217] In response, Roth and Des Forges argue,

[I]t is precisely at a time of atrocities... that a policy of trial and punish­ment is essential. Justice reinforces social norms and deters some would-be perpetrators. [O]ne can only imagine the long line of perpetrators who would choose therapy instead of prison cells.

For now, it is not necessary to question the validity of Roth's and Des Forges' specific critique of Cobban's argument. What is important to note here instead is the primacy that groups such as AI and HRW afford methods of �trial and punishment' in the context of gacaca, with the aim of deterring potential criminals, and the implication that, according to this discourse, these methods must comply with international standards of judicial procedure. Nowhere in the literature do human-rights crit­ics explicitly state that deterrent justice is the only objective of gacaca, although quotes such as the one above from Roth and Des Forges come close to making such a point. However, objectives that legal commenta­tors imply do not relate to methods of punishment, and more specifically to ideas of deterrence, such as �therapy', �healing', �rehabilitation' or �rec­onciliation', are generally treated with scepticism, if in fact they are con­sidered at all.^[219] Therefore, we can conclude that the prevailing discourse considers deterrent justice to be the primary objective of gacaca.

The current academic literature on gacaca is now quite substan­tial, and most critiques - particularly from non-Rwandan authors - have mirrored the human-rights arguments cited above. For example, Allison Corey and Sandra Joireman argue that gacaca threatens security in Rwanda by failing to adequately punish genocidaires in two key respects.^[220] First, they argue that gacaca fails to punish perpetra­tors in a formal sense, as embodied in principles of due process such as participants’ right to legal counsel and to have their cases heard by neutral, third parties, rather than by members of the community who themselves may be involved in the cases under consideration.

In the current literature on gacaca, there are several variations of these formal critiques as outlined above. However, the examples from these human-rights organisations and academics are representative of the dominant discourse on gacaca. Some critics emphasise either the formal or deterrent shortcomings of gacaca more than others, while some emphasise both of these aspects. Both components of this view of justice, however, predominate in the existing literature and consti­tute a largely coherent view among most commentators of what gacaca is and what it is designed to achieve (or more crucially, given the critical nature of most commentaries, what gacaca supposedly is not and what it supposedly fails to achieve). Later chapters will show that the dom­inant discourse on gacaca is severely flawed for two main reasons: first, because it mistakenly views gacaca exclusively as a legal institution, which can be analysed solely through the legal statutes that underpin it; and second, because it interprets formal, deterrent justice as the only objective of gacaca, while neglecting more fundamental aims, such as reconciliation, and more negotiated processes during hearings. In short, the dominant discourse fails to account for the hybrid nature of gacaca and the hybrid methods and objectives it embodies. We therefore require a more grounded interpretation of gacaca and its objectives if we are to appropriately critique its practical operation and to fully comprehend its impact on the post-genocide society.