INTRODUCTION
This chapter clarifies the genesis and modalities of gacaca and situates it within the broader realm of transitional justice. Much confusion curÂrently surrounds how best to define the history and function of gacaca and how to locate it relative to other transitional justice processes around the world.
Questions regarding gacaca abound: is it fundamentally a legal institution, a social institution with certain quasi-legal functions or someÂthing entirely different? What is it designed to achieve and how should we judge its effectiveness as a response to the needs of the Rwandan popuÂlation after the genocide? In later chapters, I argue that most critiques, especially those from non-Rwandan legal commentators, mischaracterise what gacaca is and what it is designed to achieve. Therefore, it is not surÂprising that most commentators provide unconvincing accounts of the effectiveness of gacaca as a post-conflict remedy. In particular, many legal critics mistakenly characterise gacaca as a form of mob justice, in which the rights of individuals are sacrificed for the sake of the cheap and rapid prosecution of genocide suspects, or simply as a means of centralised state control. Many of the Rwandan government’s characterisations of gacaca are also problematic, especially its attempt to portray gacaca as an indiÂgenous mechanism with which the population identifies and in which it readily wishes to participate. Later chapters will show that legal critics are misguided in dismissing gacaca as an illegitimate system for punishing genocide perpetrators, while the Rwandan government (and some comÂmentators) wrongly romanticise gacaca as a form of time-honoured justice automatically acceptable to all Rwandans.Gacaca is more complex and multifaceted than most sources have so far suggested. This chapter shows that gacaca displays what I term â€?internal hybridity', referring to its wide range of historical influences and types of objectives and processes.
Hybridity is an increasingly common theme in the study and practice of transitional justice and post-conflict reconstruction and usually refers to systems of, rather than single, instiÂtutions. In recent years, a growing trend has emerged in institutional responses to complex conflict and post-conflict situations that advocates â€?legal pluralism' or hybrid structures in which â€?two or more legal systems coexist in the same social field'.1 Today, legal pluralism in transitional- j ustice terms usually involves some type of international criminal triÂbunal and a locally directed truth commission, as in the cases of Sierra Leone and Timor-Leste, although discussions of community-based pracÂtices are also becoming more common in this regard. The primary purÂpose of such hybridity of institutions is to facilitate holism. A holistic approach to transitional justice contends that multiple political, social and legal institutions, operating concurrently in a system that maxiÂmises the capabilities of each one, can contribute more effectively than a single institution to the reconstruction of the entire society. Holistic approaches seek to respond to the various physical, psychological and psychosocial needs of individuals and groups during and after conflict.While much attention has been paid to hybridity in terms of legal pluralism when responding to mass crimes, gacaca displays a form of internal hybridity that most commentators have overlooked, while also being embedded in the hybrid system along with the national courts and the ICTR. The concept of internal hybridity entails that gacaca embodies different types of objectives and processes that normally would require multiple institutions. This chapter underscores gacaca's internal hybridity and general dynamism. Better understanding gacaca's history and methods will allow us to more effectively critique its practical operÂation later in this book.
Linking the various strands of argument in this chapter is the contenÂtion that gacaca responds to various pragmatic and complex social needs in Rwandan society and therefore manifests a level of dynamism and comÂplexity commensurate to that of the post-genocide situation.
The hybridity of gacaca as a modern-traditional institution and of its aims and methÂods is necessary to facilitate the sorts of holistic responses that the postÂgenocide environment demands. This chapter also highlights that gacaca [101] is the product of protracted debates and complex political compromises involving different factions of a divided state and disagreements among international and domestic actors over the most appropriate responses to genocide crimes. Understanding how the Rwandan state came to select a transformed version of traditional gacaca helps explain many of the curÂrent contradictions and tensions within gacaca. This political analysis also underscores key fissures within the state that determine much of Rwanda's overall reconstruction process. Contrary to orthodox opinion on Rwanda, the government is not a united, homogeneous entity capable of consistÂently enacting coherent, centralised policy with limited elite or public consultation. The experience of gacaca highlights the tenuous nature of factions within the Rwandan state and the crucial political negotiations and concessions necessary to formulate major policy decisions, especially on questions of justice, reconciliation, reconstruction and development.