Pre-genocide gacaca
Little has been written about how gacaca functioned before the Belgian colonial era. Historians record that at the turn of the twentieth century gacaca did not exist as a permanent judicial institution but was based instead on unwritten law and assembled only when conflicts arose within or between families, particularly in rural Rwanda.[106] Gacaca hearings, usuÂally held outdoors either on a patch of grass or in the village courtyard, were overseen by male heads of households, and women were forbidden from taking part, unless as claimants or defendants.
The traditional aim of gacaca, according to Abbe Smaragde Mbonyintege, was to â€?sanction the violation of rules that [were] shared by the community, with the sole objective of reconciliation’.[107] [108] Such an objective drew heavily from the traditional Rwandan cosmology that considered the family and the wider community as the most valuable human units. In this worldview, individuals gained their sense of worth primarily through their embedÂdedness in communities, from their connections first to family and then to their wider community. For this reason, punishments at gacaca were inadequate if they acted solely as punitive measures. Sentencing at gacaca was intended instead to re-establish social cohesion, incorporatÂing restorative processes that allowed individuals found guilty to regain their standing in the community. Gacaca judges never imposed prison terms on those found guilty, although in some instances they did banish individuals from the community for a short period but always with the option for them to return eventually.11Early in the twentieth century, gacaca was the main method of ensuring social order in communities across Rwanda, dealing princiÂpally with uncomplicated cases referring to land use, livestock, damage to property, marriage or inheritance.
The methods employed in hearing these cases were relatively straightforward. Gacaca brought conflicting parties before community elders to hear grievances, to allow defendants to respond to any charges and finally to pass judgments based on the eviÂdence heard. In an ideal gacaca hearing, defendants would first - after prompting from the judges - confess their crimes, express remorse and ask for forgiveness from those whom they had injured. Gacaca judges would then demand that confessors provide restitution to their victims, and the process would culminate in the sharing of beer, wine or food - usually provided by the guilty party - to symbolise the reconciliation of the parties involved.[109]With time, gacaca became more institutionalised and stratified, parÂticularly as colonial powers gained greater control over the national judiÂcial system. An important political method employed by the Belgian colonial regime in Rwanda was to appoint local (and because of the Belgians' perception, based on social-Darwinist ideology, of the Tutsi as a superior race to the Hutu), usually Tutsi, administrators to mainÂtain order on the colonialists' behalf. In the case of gacaca, these local Tutsi administrators appointed the elders in charge of hearings. Gacaca continued to function according to local, unwritten law but, whereas hearings had previously occurred in communities only as they were required and were carried out in front of judges who were usually elders of the families involved, politically appointed judges soon began holdÂing gacaca sessions once a week in each sector of the country.[110] All male inhabitants of the community - not only those involved directly in speÂcific cases - were encouraged to participate.[111]
In 1943 - in an early form of hybrid system for dealing with common crimes - the Belgian administration in Rwanda officially recognised gacaca as a legitimate judicial mechanism functioning alongside the national court system, though this concurrence was never enshrined in law.[112] The colonial regime encouraged citizens to weigh the relaÂtive strengths and weaknesses of the two systems (e.g., the speed and locality of gacaca versus the greater juridical sophistication of the offiÂcial courts) and to choose accordingly where they wished to have their cases heard. Filip Reyntjens argues that gacaca and the national courts each developed separate â€?clientele'[113] who engaged in a type of â€?forum shopping':[114] rural claimants, who were typically farmers with cases conÂcerning land rights, payment of debts, inheritance or personal disputes, tended to seek hearings at gacaca; urban dwellers with more complex cases, for example involving work contracts, often took their disputes to the official courts.
In his analysis of gacaca in a largely agricultural region of Butare province in 1986 and 1987, Reyntjens calculates that over an eight-month period nearly 93 per cent of the approximately 1,200 judicial cases heard took place at gacaca rather than in the forÂmal courts.[115]The next major phase in the evolution of gacaca saw it develop from an essentially judicial structure to one fulfilling a wider administraÂtive role after Rwanda gained independence from Belgium. Historian Charles Ntampaka argues that this change ensued as it became custom for defendants who were dissatisfied with the result of their hearings at gacaca, for example at the level of their cell (the smallest administrative unit within Rwandan local government, which usually comprises ten or more extended families or on average 830 citizens[116]) to appeal the judges' decision to the next superior administrative official such as the mayor or prefect of the sector (comprising around six cells or 5,000 citizens[117]) or even to judges in the official courts. These administrators effectively became temporary gacaca judges, fulfilling the role typically afforded heads of families and village elders. In the hands of these administraÂtors, gacaca became a much more active enterprise. Whereas in the past gacaca hearings were assembled only at the behest of parties in conflict, post-independence administrators often called parties to gacaca without any request being made by members of the community.[118] According to Ntampaka, gacaca was â€?no longer a family-based forum of reflection for the renewal of social harmony but it became instead a forum in which locally elected judges from the official courts could collect evidence, parÂticularly in civil matters, and hand down judgements based on the testiÂmonies they heard'.[119]