Post-genocide debates over transitional justice

The post-genocide period marks the most radical evolution of gacaca, during which its internal hybridity became a central feature. Although gacaca was not officially sanctioned to hear the majority of genocide- related cases until 2001, it was debated officially as a potential mechan­ism soon after the end of the genocide.

In 1996 and 1997, the notion of gacaca as a potential response to mass violations of human rights was sidelined in official discussions. Instead, the government, with major assistance from international NGOs such as the Belgian organisation Avocats Sans Frontieres (ASF) and the Danish Centre for Human Rights (DCHR), began a major overhaul of the national courts. The dire state of the post-genocide judicial system forced the government and international donors to embark on a nation­wide campaign of training new judges and lawyers.

In an attempt to further speed the hearing and prosecution of geno­cide cases in the national courts, the government passed the Organic Law of August 1996, which - as explored in greater detail in the following section - divided genocide suspects into four categories depending on the severity of their crimes and established a plea-bargaining scheme that offered decreased sentences in exchange for suspects' confessions.^[122] The Chief Prosecutor of the Supreme Court launched genocide inves­tigations across the country, establishing judicial panels comprising lay magistrates who received four months' legal training, while several hun­dred judicial police inspectors compiled dossiers on the genocide prison population.^[123]6

The national courts were initially slow in hearing the cases of geno­cide suspects. By 2000 the courts had heard only 2,500 cases, less than 3 per cent of the genocide backlog. Of those cases, around 500 accused were acquitted and 400 received the death penalty. Plea-bargaining in these cases was extremely rare, with fewer than 20 per cent of defendants pleading guilty. It was clear that, at this rate, the vast majority of geno­cide cases would never be heard, necessitating the search for alternative mechanisms to process the immense backlog.^[124]

Discussions turned to the possibility of employing a South Africa- style truth commission. As Jeremy Sarkin points out, there is a precedent of employing such an institution in Rwanda. After the signing of the Arusha Accords in 1993, a truth commission was established in Rwanda to investigate human-rights abuses committed between 1990 and 1993. Its work was severely undermined by ongoing violence in Rwanda in late 1993, but it was still able to produce a final report that detailed crimes against humanity committed during the civil-war period.^[125] In 1997, the government considered, then rejected, the idea of using a truth com­mission to address genocide crimes, on the grounds that it would not adequately punish genocidaiτes.^[126]

The year 1998 marked the re-emergence in public discourse of the potential use of gacaca for hearing and prosecuting genocide cases.

On 17 October 1998, Bizimungu established a commission to inves­tigate the possibility of restructuring gacaca into a system appropriate for handling genocide cases.^[130] Musoni describes the debates at Urugwiro during this period as protracted and often heated, a fact not readily expressed by many state sources who tend to characterise the govern­ment's decision to transform the traditional practice of gacaca as rapid and almost inevitable.^[131] The official report on the Urugwiro discussions gives a flavour of these disagreements, highlighting major dissension over justice issues and the possible use of gacaca in particular.^[132] Interviews with key participants in the meetings draw out this theme even more clearly. Musoni recounts:

The debates about whether and how we could use gacaca after the genocide were long and difficult. We were all in a room for a very long time - the President, government ministers, community leaders. The commission reporting to the President was made up of three prefects and various lawyers from the government, including several senior people in the Ministry of Justice.

At Urugwiro, we were highly conscious of the concerns of the inter­national community. What would the rest of the world think of gacaca? We'd heard many of their concerns when gacaca was first mentioned dur­ing conferences after the genocide. We knew their fears of trusting the masses at gacaca would be very great... Eventually, we found something that everyone in the room could agree to: a gacaca that kept the lawyers happy and gave the rest of us most of what we wanted.^[133]

President Kagame, who was Vice President at the time of the Urugwiro discussions, confirmed Musoni's recollections:

Those talks were very difficult. I for one wasn't convinced that gacaca was the best approach. I still don't think gacaca gives us all we need and it has major limitations. But it gives us most things and certainly more than most other processes... When we were talking [at Urugwiro] about how to achieve justice and reconciliation, I wanted something stronger than gacaca. The survivors were calling for strong justice. After all, they had been through genocide. Was gacaca going to be enough for them?... Eventually I was persuaded that gacaca would help us deal with the mas­sive numbers of genocide suspects who were in prison.^[134]

Tharcisse Karugarama, currently Rwandan Minister of Justice, who participated in the Urugwiro talks in his capacity as Prosecutor General of the Appeals Court of Ruhengeri, also echoed Musoni, especially regarding the difficulties of convincing government lawyers of gacaca's virtues:

The main stumbling block in the discussions was the acceptability of the [gacaca] process to the legal fraternity.

refer to each other as �learned brother' and �learned counsel' - they think that justice is their exclusive right. They think their exclusive right is the law without realising that justice is the domain of all the people. Law and justice are separate entities. Sometimes law delivers justice but not always. People don't know how to put on robes and wigs but that doesn't mean they don't know what justice is.

Around August 1997, I wrote something on gacaca, arguing that we could move around the country with mobile teams, screening genocide suspects. The document leaked and I went on the radio and television for three hours, fielding questions from journalists about how we could pro­vide justice for genocide cases. I was saying that the entire justice system will collapse if we don't get away from classical trials. I wasn't envisaging gacaca as it's happening today - my proposal wouldn't have been as good as gacaca is now, but I was talking about similar principles, about how to involve the population and lay judges more.

Soon after, I received so much condemnation that I nearly went into exile. I was accused of simplifying the genocide, making it sound less hor­rific than it really was [to the extent that] you could just give justice to the population and not to professionals. Most survivors when they saw me in the street wouldn't even greet me. People were muttering that I was going to promote impunity. Members of the government accused me of seeking cheap popularity. Making matters worse was the fact that the prisoners and their relatives were in favour of my proposals, so the backlash was bad. Lawyers described me as stupid. The Chief Justice even called me a donkey and there were cartoons of me in the newspapers. You couldn't talk about gacaca or anything like it in 1997... Gacaca certainly did not come easily. Almost everyone inside the government opposed gacaca early on.

These interviews with Rwandan elites highlight major divisions among policy-makers on key questions of post-genocide justice and reconcili­ation. My interviews with Kagame, Musoni, Karugarama and other gov­ernment officials indicate that four main divisions were apparent during the Urugwiro talks: between lawyers and non-lawyers; between urban and rural elites; between the RPF military and political hierarchy; and between members of the RPF who had fought or been present in Uganda or Rwanda during the civil war and the genocide and diasporic figures who had returned to Rwanda after the genocide. As Kagame describes above, the lawyers, urban elites and RPF (especially military) leaders who had lived through the conflict first-hand generally favoured �stronger’ forms of justice for genocide suspects than they perceived in the pro­posed use of gacaca. These groups opposed gacaca for slightly different reasons. Lawyers favoured more conventional judicial responses to geno­cide crimes that reflected their own legal training. Urban elites favoured similar legal measures because they would centralise accountability proc­esses in Kigali, while lawyers and urban elites converged in their depic­tions of gacaca as a primitive, rural practice appropriate only for low-level community infractions, and their distrust of the population’s capacity to address serious crimes themselves so soon after the genocide.^[136] RPF lead­ers, particularly in the military, with first-hand experience of the geno­cide advocated strict justice for the crimes they had witnessed directly and invoked survivors’ demands in the community for such measures.

On the other side, non-lawyers, rural elites, some RPF political offi­cials and returned diasporic figures argued that conventional court proc­esses for genocide crimes would prove inadequate in the face of hundreds of thousands of suspects still in prison and would fail to address crucial social issues of healing and reconciliation in the countryside. Some RPF political leaders advocated the use of gacaca by invoking principles of �popular justice’ from their days in Uganda supporting Yoweri Museveni’s National Resistance Movement (NRM) and Uganda’s history of using local councils (LCs) to address crimes in the community. Designed ini­tially as fora for communal decision-making on day-to-day community issues, the LCs evolved into the primary local-level political and judi­cial institution throughout Uganda. The LCs, as they became known after Museveni’s election victory in 1996, grew out of resistance councils (RCs) established by his forces during the Ugandan bush war to maintain law and order in rebel-held regions and to gather intelligence and mobil­ise recruitment in areas held by Milton Obote’s army. Soon after the NRM’s rise to power, Museveni proclaimed that �popular justice’ could help overcome the rampant corruption of political and judicial struc­tures inherited from Amin and Obote and reinvigorate Ugandan com­munity life.^[137] In 1987, the Resistance Councils and Committees Statute afforded the RCs the role of hearing low-level civil cases, as a means to overcoming the congestion of the magistrates courts and to making just­ice more accessible - physically and culturally - to local populations.^[138] At Urugwiro, several RPF political leaders argued that gacaca could similarly aid Rwanda's attempts to decongest the national courts of their genocide caseload while also pursuing healing and reconciliation at the community level.^[139]

Meanwhile, diasporic elites, particularly Tutsi who had returned from Europe and the USA, argued that the state needed to consider inter­national opinion of Rwanda's post-genocide policies because foreign aid and diplomatic support were essential to the reconstruction process.^[140] While Musoni's comments above emphasise international concerns over the use of gacaca to handle genocide cases, a government official who had been at the Urugwiro meetings and spoke to me on the grounds of anonymity highlighted another area of international disquiet:

There was major pressure on the government because of the public exe­cutions of genocidaires like the ones in the Amahoro [Stadium]. There was anger from survivors because of the lack of justice and anger from the international community because of how we were [initially] going about justice, so it was very difficult. The world was sympathetic to us after the genocide because of what we'd been through but some people [at Urugwiro] were saying we needed to take a softer line. We had to act calmly and reasonably. We couldn't afford to lose international support because that would mean losing aid and being isolated again.^[141]

This official stated that the key element that eventually convinced Kagame and others of the virtues of gacaca was concern over international perceptions of Rwanda’s approach to post-genocide accountability.^[142] The timing of the Urugwiro talks was especially important in this sense, com­mencing in May 1998, several weeks after a number of widely reported public executions of convicted genocidaiτes in stadia around Rwanda during the official genocide commemorations in April.^[143] The parties at Urugwiro decided eventually that international apprehension over public executions of genocidaiτes outweighed any disquiet over reviving gacaca. The latter concerns could be addressed by instilling sufficient safeguards for due process as gacaca was reformed to handle genocide cases.

These descriptions of the Urugwiro meetings highlight the major divisions within the Rwandan government and the manifold concerns that were raised during debates over appropriate justice and reconcili­ation measures. In the section below, discussing the modalities of gacaca, it is clear that much of gacaca's hybridity, especially its combination of legal and non-legal objectives and methods, results from the crucial political compromises that led to gacaca’s inception. Different parties within the government had varying experiences of the genocide, ran­ging from having fought the genocidal government directly to having lived thousands of miles away in 1994, and having been exposed vari­ously to international opinion on Rwanda. These divergent experiences crucially shaped policy-makers’ views on how best to address genocide crimes. Understanding gacaca’s genesis is vital to understanding its com­plex features and, as we shall see, the continuing divisions in govern­ment circles over how to conduct gacaca across the country. A key theme in this book is that those government divisions - particularly between lawyers and non-lawyers and between RPF leaders who experienced the genocide first-hand and members of the returned diaspora - continue to shape key areas of state policy, principally regarding how to address the legacies of the genocide.

In February 1999, after the UN Office of the High Commissioner for Human Rights assisted the post-Urugwiro study of gacaca, the UN Special Rapporteur stated, �gacaca is not competent to hear crimes against humanity, but it could be utilized for purposes of testifying in connection with reconciliation.'^[144] Ignoring the UN's advice, Bizimungu's commission produced a draft proposal in June 1999, detailing how gacaca jurisdictions might be divided among the various levels of local administration - cell, sector, district, province - with each level hear­ing and prosecuting cases according to the categories of crime outlined in the Organic Law.^[145] Soon after, the Commission distributed the draft proposal in government and NGO circles and organised a sensitisation conference in Gitarama, which gathered mayors and other community leaders from around the country to explain the concept of gacaca to them and to canvass opinion of the proposed structure.^[146] Following the conference, the newly established NURC was charged with conducting a detailed grass-roots analysis of the perceptions of the national popu­lation concerning justice and reconciliation broadly and specifically the gacaca proposal.^[147] The result of these debates and analyses was the enactment of the Gacaca Law in January 2001.^[148]