INTRODUCTION
Post-conflict transitional societies are often faced with the difficult task of transitional justice. This issue is a result of the need to balance the demands for justice and social cohesion. This delicate balance is situated within two notions of justice, retributive and restorative justice. Retributive justice refers 'to the repair of justice through the unilateral imposition of punishment'. This approach to criminal justice is most prevalent in Western societies. Restorative justice, on the other hand, is “a process whereby all the parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for the future”. Restorative justice is informed by a deliberative and collective process to bring all sections of society together and tap into “opportunities of norm clarification”. Drawing on these two notions of justice, this essay analyzes two post-genocide justice processes, Gacaca community courts and the International Criminal Tribunal for Rwanda (ICTR), examines their successes and failures, and recommends how to ensure justice for all and promote peacebuilding.
INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA
The ICTR was established through the United Nations Security Council (UNSC) Resolution 955. Resolution 995, among others, tasked the Tribunal to put on trial perpetrators and accomplices of the genocide [and] 'other systematic, a widespread and flagrant violation of international humanitarian law”. After operating for at least two decades (1994-2014), the ICTR indicted over successfully convicted sixty-one (61) out of at least ninety (90) accused persons, and fourteen (14) persons discharged on acquittal.
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The ICTR made modest progress and encountered some difficulties. The formation of the ICTR was a belated yet important step by the UN on global governance. This ideais critical in light of the UN's failure to halt the genocide. The conviction of some high profile individuals by the ICTR was a bold statement that individuals can be held accountable for crimes against humanity. However, the ICTR was beset with some challenges. The location of the ICTR outside Rwanda, specifically in Arusha, Tanzania made a significant number of Rwandans detached from the processes. The unwillingness by the ICTR to hold leaders of the Tutsi-led Rwandan Patriotic Front (RPF) was perceived as an attempt to foist “collective guilt” on Hutus. This is buttressed by the fact that the ICTR failed to act decisively on a 1994 UNSC Commission of Experts report that concluded that the RPF had “perpetuated serious breaches of international humanitarian law and crimes against humanity”. The snail pace trials, inexperienced staff, delayed trials and judgment, an estimated expenditure of the USA $ 2 billion spent on the ICTR, according to critics, was not worth it because the ICTR 'failed genocide victims and survivors'.
GACACA COURTS: INSTITUTIONAL FRAMEWORK AND OBJECTIVES.
Gacaca translates as “justice on the grass or dialogue justice”, and based on the objective of “mass justice for mass atrocity”. Other stated objectives of Gacaca include 'to ensure speedy delivery of justice to achieve truth, justice, and reconciliation'. Pivoted on a community-based approach to justice delivery and inaugurated in 2005, Gacaca is considered 'one of the most ambitious transitional justice projects the world has ever seen'. The formation of Gacaca in 2005 was informed by several factors. These include thousands of pending cases , congested prisons, weak legal infrastructure without trained and experienced lawyers and judges—significant number lost their lives in the genocide. In the immediate aftermath of the genocide, conventional courts in Rwanda lacked “safeguards against abusive prosecutions heightened the risk of unfair trials”. The above challenges were catalyzed by a fervor among Rwandans for ownership and participation in post-genocide justice delivery. These culminated in the formation of Gacaca.
Historically, Gacaca played a pivotal role in pre-colonial Rwanda with less emphasis on punitive measures. The post-genocide Gacaca best fits a mixture of restorative and retributive justice. which operated from 2005-2012, had jurisdiction over three categories of crimes stated in Article 2 of the Organic Law No. 16/2004 of 19.06. 2004 that gave rise to Gacaca. Category 1 entails the primary instigators, planners, and individuals in leadership positions at the time of the genocide, Category 2 comprises perpetrators or conspirators of accomplices, and Category 3 focuses on crimes against property. Article 51 of the Organic Law tasked Gacaca to prosecute and put to trial 'perpetrators of the crime of Genocide and other crimes against humanity committed between October 1, 1990, to December 31, 1994'. For purposes of adjudication, Gacaca was constituted by a General Assembly and judges elected by and from communities entrusted with the responsibility to dispense justice. Gacaca permitted “victim-offender mediation….a confrontation that makes offenders face up to the reality of the harm they cause”.
From a retributive justice perspective, Gacaca punishment ranged from imprisonment to death penalty. Category 1 offenses elicited the severest punishment. The death penalty was originally part of Article 72 (1) of the Organic Law until it was abolished in 2007 through an amendment. Gacaca did not provide for amnesty, but permitted confessions for lenient sentences for categories 2 and 3 offenses. The permissibility of confessions allowed a certain degree of restorative component for purposes of reconciliation. This is because confessions provide a context for “apology and forgiveness aimed at the reintegration of perpetrators”. Also, community ownership and participation through Gacaca authenticates the view that 'crime has its origins in social relationships and communities'. Due to its emphasis community participation in national efforts, 'Gacaca justice system was praised for incorporate[ing] elements of a very different, restorative approach to issues of justice and wrongdoing into policy”, and for introducing “reintegrative shaming”, a distinctive departure from “punitive, procedural, Western-style justice”.
Max Rettig offers a mixed assessment of Gacaca: “[It ] . . . brought more people to trial than the ICTR, transnational trails, and the ordinary Rwandan courts combined, Gacaca exposes and perhaps deepens conflict and resentment, and ethnic disunity. Lies, half-truths, and silence have limited Gacaca’s contribution to truth, justice, and reconciliation”. For Jennie Burnet, “Gacaca . . . delivered justice for some, and established at least a partial truth, but it has . . . deepened the cleavages between Hutu and Tutsi”. The question that originates from Burnet's assessment and which is relevant to assessing Gacaca is: Whose version of the truth was to be established?
ASSESSING GACACA: 'TRUTH'? WHOSE VERSION OF THE TRUTH?
Reconciliation is pivoted on the idea that “Truth leads to justice, and justice leads to reconciliation. Social healing is advanced through uncovering past wrongs, introducing closure and moving on to consolidated peace…. where truth heals and restorative and retributive justice meets”. This implies a symbiotic relationship between the following variables: truth, justice, and reconciliation. However, establishing the 'truth' in the context of genocide is an arduous task. It requires the collection of evidence, contextual interpretation, meaning construction and interactions between perpetrators and victims to arrive at a compelling conclusion.
Truth discovery is a daunting milestone in transitional justice. In the case of Rwanda, testimonies by some witnesses were motivated by “revenge, fear and hatred,” and evidence gathering was tainted by subjective 'remembering’ and “identities constructed in the [genocide].” This assessment of Gacaca was corroborated by findings from Burnet’s ethnographic study:
In some communities, genocide survivors and others organized themselves to fabricate testimonies and evidence against certain people. In some cases, they appeared to be motivated by the desire for reprisal or revenge. They feel as if they know certain people were involved [in the genocide] and they want to make sure they are found guilty. They fabricated cases . . .
Besides, some accused persons “might have confessed to less severe crimes than the ones they committed, while others may have confessed to crimes they did not commit” to benefit from lenient sentences. Discovering the truth, therefore, was hinged on who is telling the story.
GACACA: WITHER DUE PROCESS?
A justice system must possess certain characteristics to ensure that due process is adhered to. These include the right to remain silent, access to legal counsel, fair and speedy trial, among others. a related issue raised was respect for due process. Some scholars are of the view that Gacaca lacked due process safeguards. Some judges did have any legal experience nor the training to adjudicate complex cases including genocide. The selection of judges was significantly influenced by the national government under the guise of a community-led approach. In that regard, judges and other officials of the court were perceived as appendages of the national government.
The government reportedly applied force to compel members of communities to compulsorily attend Gacaca sessions to meet the quorum required to start trials, and defendants had to defend themselves without legal representation. Amidst threats and intimidation and minimal or no protection from the state, some witnesses were worried about their safety as “they must face creators of their scars” in Gacaca. As is the case with transitional societies such as Rwanda, some witnesses would have been discouraged from providing compelling evidence at trials due to fear and victimization. Consequently, the outcome of some cases may not be a fair reflection of reality. As a result, the verdict of some Gacaca cases was a double-edged sword: some communities were largely satisfied; others [such as] survivors, prisoners, and their families were frustrated'.
VICTORS’ JUSTICE?
Before the advent of Gacaca, the disproportionate number of Hutus found guilty by the ICTR had already fueled a perception that the kind of justice being pursued was not even-handed. Before the work of the Tribunal, Hutus had been portrayed as ‘perpetrators’ and Tutsi as ‘victims’ of the genocide. This characterization, however, fueled a sense of victors’ justice. As a result, the exclusion of crimes committed by the RPA from the jurisdiction of the Gacaca deepened perception of victors' justice. The context is that the Tutsi-dominated RPA has metamorphosed into the current ruling, also committed heinous crimes before, during and after the genocide including the killing of an estimated 6,000 people in 1997, three years after the genocide. As mentioned already, the Organic Law that led to the establishment of Gacaca had as its scope of work crimes committed between October 1, 1990, to December 31, 1994.
The scope of Gacaca's jurisdictional timelines had two implications: First, Hutu perpetrators of genocide were likely to be targeted as they were in control of government machinery at the time of the genocide. Second, Tutsis who committed heinous acts post-1994 were more likely to escape the clutches of punishment as Gacaca prosecutorial powers did not reach crimes committed after December 31, 1994. This was indicative that to a certain extent, the institutional and operational framework of Gacaca was targeted at Tutsis. It also reinforces the view that the “kind of trial a man gets depends on his ethnic group”, a situation that defeats the essence of equal justice. From a gender perspective, Gacaca judges were accused of being lenient with women accused of participating in the genocide. This was partly attributed to the stereotype that war is a ‘predominantly male activity’. Consequently, “male witnesses, investigators, prosecutors and judges are so infected by gender stereotypes that they either cannot perceive women as criminals or feel protective towards them'. This has the unintended consequence of providing an impunity safety net for female perpetrators to escape justice. More crucially, this also signals that the process of reintegration should be broadened to also include female combatants in post-conflict societies including Rwanda.
CONCLUSIONS AND RECOMMENDATION
Without a doubt, delivery justice in the genocide that led to the loss of at least 800, 000 lives cannot be underestimated. Admittedly, the ICTR and Gacaca have contributed to delivering justice. As explained above, perceptions of bias and victors’ justice mean sections of Rwandans believed Gacaca and ICTR caused “more harm than good”. From a case count perspective, the Government of Rwanda estimates that a total of 1, 958,634 cases were adjudicated, a case count that was “exceptionally greater than any to those of any justice system that investigated and tried genocide cases either in Rwanda or elsewhere…”. This represents a reinforcement of criticism of the comparatively fewer cases adjudicated by the ICTR and a vindication of Gacaca—at least from the government perspective. I take a cautiously optimistic view because Gacaca provided Rwandans a mechanism to own and participate in the process of justice delivery. Criticisms of Gacaca are cannot be discounted as it was a novelty and challenges were expected. However, some of the criticisms have been fueled by comparisons with Western-style adversarial judicial proceedings. Also, it seems the quest to deliver justice has placed overbearing emphasis on legal processes with little or no emphasis on how survivors and victims are coping post-Gacaca and ICTR.
I assess that the legacy of transitional justice in the context of the ICTR and Gacaca, is that of fragile peace, and remnants resentment and simmering tensions. These grievances can lead to conditions that triggered the genocide. The economic gains achieved by the Paul Kagame-led government should not mask the dysfunctions of exclusionary politics, stifling of free speech and delayed payment of compensation to victims and survivors of the genocide. To enable positive peace and social healing, I recommend the strengthening of institutions to enable people to seek redress and vent their frustrations. It important that the political space is opened to allow for alternative voices in governance and economic opportunities for survivors and victims. It is good that female representation in the Rwanda legislature is almost at parity with males. This should translate into policies that affect the economic livelihoods of Rwanda women. Also, the government cooperates with the international community to prosecute perpetrators, particularly Tutsis who engaged in revenge killings because crimes against humanity have no statute of limitations. Restorative justice requires a balanced approach in which “a single objective is not allowed to dominate the others”. A balanced should entail political freedoms, economic transformation, payment of compensation and continuous pursuit of justice to deepen national unit, reconciliation, and peacebuilding.
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