MODALITIES OF GACACA

Having seen how gacaca has developed historically, it is now necessary to examine briefly how the modernised version of gacaca functions. Understanding the modalities of gacaca will be important for the explor­ation of its hybrid objectives and methods in later chapters.

Category 1

(a) any person who committed or was an accomplice in the commis­sion of an offence that puts him or her in the category of planners or organisers of the genocide or crimes against humanity;

(b) any person who was at a national leadership level and that of the prefecture level: public administration, political parties, army, gendarmerie, religious denominations or in a militia group, and committed crimes of genocide or crimes against humanity or encouraged others to participate in such crimes, together with his or her accomplice;

(c) any person who committed or was an accomplice in the com­mission of an offence that puts him or her among the category of people who incited, supervised and ringleaders of the genocide or crimes against humanity;

(d) any person who was at the leadership level at the sub-prefecture and commune: public administration, political parties, army, gendarmerie, communal police, religious denominations or in a militia, who committed any crimes of genocide or other crimes against humanity or encouraged others to commit similar offences, together with his or her accomplice;

(e) any person who committed the offence of rape or sexual torture, together with his or her accomplice.

Category 2

(a) a notorious murderer who distinguished himself or herself in his or her location or wherever he or she passed due to the zeal and cruelty employed, together with his or her accomplice;

(b) any person who tortured another even though such torture did not result in death, together with his or her accomplice;

(c) any person who committed a dehumanising act on a dead body, together with his or her accomplice;

(d) any person who committed or is an accomplice in the commis­sion of an offence that puts him or her on the list of people who killed or attacked others resulting in death, together with his or her accomplice;

(e) any person who injured or attacked another with the intention to kill but such intention was not fulfilled, together with his or her accomplice;

whose criminal acts or whose acts of criminal participation make them guilty of other serious assaults against the person’ (Organic Law, Article 2; Gacaca Law, Article 51). In Gacaca Law (Modified 2004), these two categories are merged to create a new Category 2, while the old Category 4, which deals with individuals charged with property-related crimes, is now rendered as Category 3 (Gacaca Law [Modified 2004], Article 51).

(f) any person who committed or aided another to commit an offence against another without intention to kill, together with his or her accomplice.

Category 3

A person who only committed an offence related to property. However, when the offender and the victim come to a settlement by themselves, settle the matter before the authorities or before the witnesses before commencement of this law, the offender shall not be prosecuted.^[177]

Until 2008, gacaca had jurisdiction over suspects in Categories 2 and 3, while Category 1 cases were referred to the national court system and the ICTR. The 2008 modifications to the Gacaca Law shifted a range of Category 1 cases to gacaca, including those of suspected orchestrators of the genocide at the sub-prefecture and commune levels and suspected perpetrators of rape or sexual torture.

For those suspects over whom gacaca has jurisdiction, the Gacaca Law divides the hearing of their cases, according to category, between the approximately 11,000 jurisdictions at two administrative levels. Each of these levels carries out a different task in the gacaca process. The cell is charged with the investigation of crimes committed within the cell during the specified period and with the production of four lists: first, of all those who lived in the cell before 1 October 1990; second, of all those who were killed in the cell during the specified period; third, of the damage to individuals or property inflicted during this time; finally, of suspects and their category of alleged crimes. The cell hears cases only of suspects in Category 3. Cases of suspects in Categories 1 and 2 are heard at the sector level. The sector also func­tions as the jurisdiction for the appeal of all cases heard in gacaca and the point from which certain Category 1 cases are forwarded to the national courts.^[180]

A crucial issue for the effective running of gacaca is the election of j udges. Gacaca is unique among post-conflict judicial structures around the world in its mass involvement of the population in the delivery of justice. Gacaca judges must be Rwandan nationals over the age of twenty-one years, without any previous criminal convic­tions or having ever been considered a genocide suspect (except in relation to property crimes), and an honest, trustworthy person, �free from the spirit of sectarianism' but �characterised by a spirit of speech sharing'.^[181] Judges cannot at any time have been an elected official, government or NGO employee, trained judge or lawyer, or a member of the police, armed services or clergy.

Both levels of gacaca - cell and sector - consist of a general assembly, a bench of judges, a president and a coordinating committee. At the cell level, the general assembly constitutes every resident of the cell over the age of eighteen years. In October 2001, general assemblies across the country elected nineteen judges to form cell-level benches of inyanga- mugayo while also nominating five representatives to form the general assembly at the sector level. The revised Gacaca Law in 2004 reduced the number of judges at both levels of jurisdiction to nine, with five deputies also nominated who could substitute for any of the nine judges if they were absent.^[182] In July 2004, the gacaca judges who were elected in 2001 decided among themselves which individuals would stay on as either judges or deputies, thus reducing the number of judges nationwide from approximately 250,000 to around 170,000.88 Surveys into the make-up of benches of gacaca judges across Rwanda show that most judges are middle-aged, professional, educated members of the community, with women constituting around 35 per cent of all inyangamugayo at the cell level, and judges with higher education usually nominated to the sector level of gacaca.^{[183] [184]}

Gacaca j udges are empowered to carry out various tasks, including summoning witnesses to testify at hearings, issuing search warrants and imposing punishments on those found guilty. Judges usually sit once a week before a required quorum of 100 members of the General Assembly. In Phase 1 of a gacaca jurisdiction, which ideally should comprise six weekly meetings (but invariably takes much longer), the Assembly gathers to determine a schedule of hearings and to begin com­piling the four lists mentioned above. In Phase 2, which comprises the seventh meeting, the General Assembly gathers to produce a detailed dossier of evidence on each individual accused of a crime and listed dur­ing the sixth meeting of Phase 1.

A key role of the president in this scenario is to maintain order within the Assembly, especially as the discussion can become emotion­ally charged and testimonies may diverge. The Ministry of the Interior is tasked with guaranteeing the security of judges, suspects and the community at large during gacaca hearings, usually by providing one or two armed security guards for all sessions.^[186] The president must also encourage those who may be reluctant to speak - especially women and the young - to testify. In particularly emotional or complex cases where witnesses may be unwilling to testify in front of a large gathering, judges (or in cases involving sexual violence, a single judge) may convene in camera with a witness to hear evidence. As discussed in greater detail below, lawyers are forbidden from assisting either suspects or witnesses at any stage of a hearing as their involvement is seen as a potential threat to the open, non-adversarial approach of gacaca. Gacaca’s insistence on delivering justice without lawyers constitutes one of the primary reasons legal critics and human-rights groups have been so hostile towards the institution.

After hearing evidence against a suspect, judges may retire in camera to consider the individual’s guilt, before which judges are expected to with­draw themselves from any cases involving friends or family members to the second degree of relation. The president will attempt to reach a con­sensus among the judges before deciding on the person’s guilt.

The Gacaca Law dictates that punishment should be meted out in various ways. Individuals who refuse to testify at gacaca or are found to have provided false testimony are subject to a prison term of three to six months.^[188] A centrepiece of the gacaca judicial structure is a predeter­mined matrix of sentences that incorporates a system of confession and plea-bargaining that is foreign to the European judicial system but finds a place in some jurisdictions in the USA (see Table 2.1). According to this matrix, suspects can decrease their sentences by at least half if they con­fess their crimes. Another important feature of the gacaca sentencing mechanism is the combination of prison terms and community service.

The sentencing structure, as established by the Gacaca Law, operates as shown in Table 2.1.^[189]

table 2.ι Gacaca sentencing scheme

⁹⁵ Minors who were less than fourteen years old at the time of the offence cannot be prosecuted at gacaca but instead are placed in special solidarity camps ( ibid., Article 20).

Most community service is carried out in travaux d' Interets generaux (TIG) camps, which are administered by Rwanda Correctional Services and involve convicted perpetrators in community work programmes such as road-building, clearing ground, making bricks and rebuilding houses for genocide survivors.

Finally, an indication of the breadth of its objectives, gacaca draws together a wide range of government departments. The NSGJ, which previously constituted a specialised chamber of the Supreme Court until the modified Gacaca Law of 2004 rendered it an independent govern­ment entity, is the primary institution charged with administering the gacaca process. The National Human Rights Commission and several international NGOs are actively engaged in the monitoring of gacaca and proposing reforms. Meanwhile, the Ministry of Justice is in charge of running education campaigns to sensitise and mobilise the popula­tion to participate in gacaca.^[190] In particular, the ingando - administered jointly by the Ministry of Justice and the NURC - are a key component of the process to educate the population, especially suspects, about the aims and methods of gacaca.^[191] Finally, the Ministry of Health, with the assistance of the NURC, has trained a small number of trauma counsel­lors to deal with people's psychological difficulties as a result of their par­ticipation in gacaca.^[192]

At the time of writing, the Rwandan government was considering maintaining the gacaca system beyond the completion of the genocide caseload in order to deal with the mounting number of day-to-day crimes in the community. The government considers gacaca to have been such a success in decreasing the burden on the national courts in handling genocide crimes that it could fulfil a similar purpose regarding every­day crimes.^[193] Projected national budgets indicate a substantial increase in funding to the gacaca jurisdictions well after the expected completion of the genocide caseload in 2010, suggesting gacaca will continue to play a major role in the national criminal-justice framework.^[194]

This future version of gacaca may replace a current community-level institution known as �mediation committees’ or abunzi, which the gov­ernment instituted in 2003 to resolve disputes unrelated to genocide crimes. The abunzi comprise twelve community members considered to be of high integrity, of whom the conflictual parties may choose three to mediate their particular dispute. According to the Kigali-based Institut de Recherche et de Dialogue pour la Paix:

The abunzi emphasise the role of the family as a critical �first step’ in the resolution of domestic disputes; conflicts over divorce and inheritance, for example, have to go through abunzi before they can be transferred to a formal court. The mediators will first try to reconcile both parties, before devising a settlement based upon local laws and customs. Any party who is dissatisfied with the settlement may then refer the matter to the courts.^[195]

I n this regard, the abunzi resemble strongly the colonial and post­independence versions of gacaca, as permanent, state-sanctioned struc­tures designed to deal with everyday conflicts in the community. Gacaca’s eventual replacement of the abunzi will represent a cyclical evolution of gacaca, as it reverts to this historical status, with the exception that it will, like the genocide version, be enshrined in national law. It is likely that the population’s experience of gacaca in handling genocide crimes will greatly affect popular interpretations of, and participation in, the future version of gacaca. The analysis of gacaca’s efficacy in later chap­ters will therefore be important for interpreting its probable success as a long-term judicial mechanism. Having described the history of gacaca’s evolution through the twentieth century and after the genocide and the nature of its current philosophy and modalities - especially its endogen­ous construction of hybrid aims and methods - I turn now to the ques­tion of how we should best interpret gacaca’s aims, with an eye towards offering an appropriate critical analysis of gacaca later in this book.