Government’s perspectives on justice through gacaca
How do the different sources define justice through gacaca? The official view emphasises the retributive and deterrent functions of punishing susÂpects found guilty of committing genocide, while maintaining that the punishment of perpetrators should be shaped towards more restorative ends.
The government in the early years of gacaca expressed the restoraÂtive view more mutedly, probably for fear of alienating survivors who may view any diminution of punishment as unjust. The Gacaca Law emphaÂsises the deterrent nature of punishment at gacaca by stating that gacaca is established in order to â€?eradicate forever the culture of impunity' by adopting â€?provisions enabling rapid prosecutions and trials of perpetraÂtors and accomplices of genocide'.[550] Rapid trials are necessary, the governÂment argues - highlighting the concerns of retributive justice for fulfilling a moral obligation to try suspects and to punish the guilty - to process the immense backlog of previously untried genocide cases and to improve on other judicial structures such as the Rwandan national courts and the ICTR. Underlining the importance of gacaca for restorative justice, however, the Gacaca Law goes on to state that gacaca is designed â€?not only with the aim of providing punishment, but also reconstituting the Rwandan Society that had been destroyed by bad leaders'.[551]Senior Rwandan judicial officials increasingly argue that gacaca is necessary for restorative justice after the genocide, although they highlight different nuances. The Prosecutor General, Martin Ngoga, emphasised the enormity of Rwanda's post-genocide challenges and the necessity for gacaca to deliver reconciliation. â€?Justice here has been necessarily contextual', he said. â€?Our country was nearly destroyed by the genocide, which some people forget... But justice has made huge conÂtributions here.
We don't ask anyone to sing our praises but, if you look at the results, gacaca has delivered justice that has helped reconcile our people.'[552] Professor Sam Rugege, Deputy Chief Justice of the Supreme Court, cautioned against wishing reconciliation to happen too quickly but nevertheless stressed the importance of gacaca - and the law generÂally - in deterring future criminality and facilitating reconciliation. In 2006, Rugege said,Gacaca is our only chance of reconciliation... Reconciliation depends on Rwanda finishing the process of prosecuting genocide suspects... We have a difficult situation of balancing different concerns. There are of course problems with fast justice and fast reconciliation. Reconciliation is an unavoidably slow process. And justice must precede reconciliation. It's part of the process - in many ways, we have to get it out of the way so that reconciliation can become viable.
... In terms of rebuilding this country after the genocide, the polÂitics of the situation can be debated, including convincing the ordinÂary people of certain policies and approaches. But it's more effective to rebuild through the law than through politics and morality. Politics has much to do with it and it's important to sensitise the population. The NURC, for example, has a major role in the rebuilding. But law has an important role because it deters future perpetrators and it also encourages others to do right, to follow a better path and to live more harmoniously.[553]
Assessing gacaca's impact in 2008, Rugege emphasised the effect of gacaca on Rwanda's entire legal system and, as a consequence, on improvÂing social relations and facilitating reconciliation:
Gacaca has done a stunning job of handling genocide cases at the rate that it has... It has also had an impact on our entire legal system, which we reformed substantially in 2004 and have continued to reform ever since. We now use plea bargaining much more than before, and you can see the influence of gacaca in this regard.
In the formal courts, confession now enables lesser sentences, even the possibility of halving sentences, and more perpetrators are confessing their crimes. This is the impact of gacaca... The abunzi have also helped greatly. The abunzi are like gacaca in that they promote good neighbourliness and reconciliation between warring parties, telling them, â€?If you talk things through, you can settle it.'... Social development comes through laws. The law is a vehicle for change, which is why legal and judicial reform are so crucial in this context. Out of destruction can come good things. Gacaca is our centrepiece for dealing with genocide crimes but it has been more than just punishment. It has brought about reconciliation among those who were directly involved in the genocide.[554]Meanwhile, Tharcisse Karugarama, the Minister of Justice, underÂscored gacaca's achievements but also warned against expecting the law to achieve too much in the post-genocide context. â€?Look at what gacaca has accomplished', he said.
We now have only 53,000 detainees in prison, including genocide and other cases. Where are the rest? They've been reintegrated into the comÂmunity. Some have been acquitted, some have received light terms, most have done community service and have helped in rebuilding the country... Gacaca has delivered justice and you can see the benefits in the way people relate to each other on the hills... Justice isn't about laws. It's about fairness and restoring human dignity. I've been a prosecutor and a judge and I know you shouldn't confuse justice and legal dogma. Gacaca hasn't always been acceptable to the legal fraternity but that's just dogma. Gacaca has delivered a justice that restores people's dignity and gives them a way to live together.[555]
Concerning the specific means of restorative justice, the governÂment describes only vaguely how gacaca helps facilitate restoration, which it sometimes defines opaquely as â€?social cohesion'[556] or â€?commuÂnal harmony'.[557] In the official view, it is clear how punishment will be achieved through negotiated and formal means but less clear how this will contribute to rebuilding relationships.
The Gacaca Law emphaÂsises that genocide suspects will be prosecuted via detailed processes of communal evidence-gathering and deliberation (i.e. by negotiation) and, if found guilty, punished according to the predetermined matrix of sentences outlined in Chapter 2 (i.e. by formal procedures). The govÂernment rarely describes, though, how these processes will help faciliÂtate restoration. In the rare instances that official sources do discuss the shaping of punishment towards restoration, they argue that this will occur through dialogue and collaboration during gacaca hearings. These processes are partly designed, as Nkusi was quoted in the last chapter, to uncover legal evidence in order to prosecute genocide perpetrators but also to encourage the population to collaborate in such a way as to help them rebuild relationships after the genocide.[558] President Kagame also connected gacaca to restorative justice in this way: â€?The justice that you see at gacaca supports reconciliation by involving the people in the proÂcess. It may not be the ideal way of doing things but it is what we have to work with.' [559] In this 2006 interview, Kagame conceded that gacaca was struggling under the weight of the enormous genocide caseload, including hundreds of thousands of newly identified cases, and thereÂfore the government was considering other ways to expedite the judicial process:I have to stress that gacaca is not open-ended. It has to have an end. It won't just stop if we reach 2008 but, at the same time, it can't continue forever because we have other goals to pursue. Open-endedness would be negative for the whole country... Even an amnesty is possible, especially for low-level perpetrators. You'll remember that we used an amnesty for some people in 2003. Anything is possible, even with some of the very serious cases. We'll give time to our various processes to deal with these cases but we're talking about justice on a massive scale and we have to look at other approaches.43
Recently, state officials have described the importance of community service in rebuilding fractured social relations, especially as convicted perpetrators perform communal works that directly benefit survivors. �More reconciliation occurs when perpetrators return home from TIG after gacaca', said Ndangiza. �Then they start rebuilding trust and the reconciliation process really starts. Some do TIG from home and they meet victims directly and this helps reconciliation.44