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Longer, analytical article.  Rwanda: Gacaca courts, justice and reconciliation: Challenges for Rwanda

Summary & Comment: In this article, Gerald Caplan presents an extensive review of Phil Clark’s book titled, ‘The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers’. MUB

Author: Gerald Caplan Date Written: 21 April 2011
Primary Category: Central Region Document Origin: Pambazuka News, Issue 526
Secondary Category: -none- Source URL: http://www.pambazuka.org
Key Words: Rwanda, Gacaca courts, book review, justice, reconcilation, future

African Charter Article #17: Every individual shall have the right to education, cultural life, and the promotion and protection of values. (Click for full text...)



Printable Version
Gacaca courts, justice and reconciliation: Challenges for Rwanda

http://www.pambazuka.org/en/category/features/72786  

If Phil Clark’s new book can’t be said to be the definitive work on Rwanda’s gacaca, the country’s remarkable experiment in transitional justice, it is only because it is far too soon for such an achievement. It will take years before the impact of the gacaca process can fully be assessed, and we can be confident that even then, consensus – as in all things Rwandan – will be hard to find. Nonetheless, with this new book on gacaca, following his 2008 book of edited essays ‘After Genocide’ (with Zachary Kaufman, reviewed in Pambazuka News issue 443, 23 July 2009), Clark has surely become the universal standard against which all future works must be judged.

Although the gacaca experiment has already attracted a small platoon of academics and other observers fascinated with the vexed issue of transitional justice, I’m aware of no others who have immersed themselves in the subject as thoroughly as Phil Clark. His fieldwork ran from the first trial runs in 2001 to the time gacaca was winding down in 2010, while he interviewed some 450 participants and observed 67 gacaca hearings in 11 communities. From these sources Clark, an Australian political scientist at Oxford University, paints a multifaceted picture of the many diverse objectives of gacaca held by various constituencies in Rwanda and the apparent impact of each.

Of course being Rwanda, we can take for granted that deep divisions will characterise attitudes toward gacaca as it characterises every other aspect of Rwandan life. Gacaca has its inevitable cheerleaders, tied in one way or another to the government, who will brook no criticism, as well as its automatic detractors for whom anything associated with the Kagame RPF (Rwandan Patriotic Front) government is automatically anathema. Clark repudiates both camps. One welcome development in the field is the emergence of a group of Rwandan scholars who have been studying gacaca and who have begun writing about it. Clark is familiar with both the Rwandan and non-Rwandan literature on the subject and is excited by the prospect that forthcoming books and articles by Rwandans are likely to offer new insights into the genocide and its aftermath, including the operations of the gacaca courts.

It has been one of the characteristics of the genocide in Rwanda that its history has largely been told by outsiders, specifically muzungu from the west. This is especially true of the literature in English. The limits of what can almost be called the neocolonial view of Rwanda are clear from Clark’s analysis of the writings of Rwandans and non-Rwandans on gacaca. He finds in general that the Rwandan writers are more sympathetic to gacaca, the foreigners more critical. On the whole, his own conclusions place him considerably closer to the Rwandan writers than to other outsiders like himself. While far from uncritical about how gacaca has operated and about certain roles played by the government, his own expansive view of the many dimensions of gacaca, which he argues many outsiders largely ignore, make him by and large a cautious admirer of the entire project.

While all the classic 1948 convention genocides share an overriding characteristic – the planned and organised conspiracy to eliminate an entire identifiable group – each has certain unique aspects as well. In Rwanda, it was the intensity, the very short timespan, the massive number of killers who were ordinary citizens, the fact that killer and victim might have been drinking or attending church together only days earlier and, above all, the extraordinary reality that once the genocide was finally defeated, killers and survivors often went back to living on the same hill. Within a few years the prisons were swollen with accused genocidaires, all Hutu, totalling as many as 130,000 souls living in the most squalid of conditions. It was in the face of this unprecedented phenomenon that all attempts at justice and reconciliation had to be designed. To say the task was daunting does not begin to give a sense of the complexities. These realities, as Clark points out, have often been downplayed by gacaca’s (and Rwanda’s) many harsh foreign critics.

Despite the flowering of so-called truth and reconciliation commissions across the globe, post-conflict goals are in fact not always universally shared. Indeed, as we often forget, many are in conflict or tension with each other. Besides justice, democracy, truth and reconciliation, there are the equally elusive goals of peace, ending impunity, healing, forgiveness, national unity, harmony, short-term relief, longer-term reconstruction and development. And all of these are to be acted on by a new government that, to say the least, does not enjoy universal support and that is dependent on miniscule human and financial resources and barely rudimentary infrastructure. In Mahmood Mamdani’s telling formulation, in the early years after the genocide Rwandans wanted democracy and justice. More precisely, few Rwandans wanted both. Hutu wanted democracy and the Tutsi-led RPF government wanted justice.

Gacaca, Clark learned, had many initiators, and most of the objectives listed above were promoted by one or another of them. For a country with no resources, it was a remarkably ambitious project, unlike anything ever tried before anywhere. And not only were the goals massive, so was the process. Clark notes that by design, gacaca involved virtually the entire population of the country. A huge percentage of Rwandans participated in some way or another over the years, including literally hundreds of thousands who were witnesses or judges elected by the community. The implication of this needs to be spelled out, for it is widely misunderstood: Given these numbers, it is evident, and crucial, that large numbers of Hutu were directly involved.

The challenges confronting the gacaca project seemed all but insurmountable – a shattered, traumatised, exhausted society living in a world of hurt and mistrust. It is against that reality that gacaca must be judged, but often is not. Among the most severe critics of gacaca, to the surprise of many, have long been Amnesty International (AI) and Human Rights Watch (HRW). In fact their criticisms began even before gacaca was formally launched and has not relented ever since. As Clark observes, these groups could not get beyond their conviction that nothing ever passes muster other than formal, Western-style practices where defendants have access to trained legal counsel and cases are heard by trained, experienced judges. Of course, even the richest of Western countries have trouble meeting these ideal conditions.

According to Amnesty, gacaca ‘fails to meet internationals standards for fair trails and lacks independence, impartiality and transparency’. HRW equated ‘Rwanda’s highly discredited gacaca courts’ with American military procedures in Guantanamo Bay. As Clark shows, many non-Rwandan authors have echoed these criticisms, though few Rwandans agree. Similarly, many of these non-Rwandans, including AI and HRW, strongly criticise the decision to keep the crimes of the RPF out of gacaca’s jurisdiction.

If it were up to these critics, presumably Rwanda would have introduced the entire panoply of international legal processes that has characterised the International Criminal Tribunal for Rwanda (ICTR) sitting in Arusha, Tanzania. There would be lawyers and judges and registrars and more lawyers and appeals, logically with the same results as the ICTR, where to date about 1,000 staff have completed 52 cases since 1995 at a cost of some US$2 billion. In comparison, total Rwanda government spending on the direct running of gacaca was US$39 million. While Clark criticises the Rwanda government for ‘grossly overstating’ the number of suspects prosecuted at a million, his own estimate is that gacaca ‘certainly has succeeded in prosecuting hundreds of thousands of suspects and probably completed the backlog of genocide cases’. This, by the way, includes the wholly unexpected multitude of new suspects who were identified at the gacaca trials themselves plus thousands of murder suspects who had been transferred to the gacaca courts from the national courts.

Even those who applaud the numerous jurisprudential achievements of the Arusha tribunal are frustrated that so few cases using so many resources have been completed. Yet if Rwanda itself had operated according to the highest international standards, it surely would have heard only a mere handful of cases, given that there were barely any lawyers or judges left after the genocide. And if the mandate had also included accused RPF suspects, as critics demanded, the workload would have been even more ludicrous. Yet none of these practical issues, none of these self-evident constraining realities, ever seemed to interest gacaca’s critics, as they repeated their harsh dogmatic criticisms time after time after time. It has been a troubling mystery for many years.

Clark argues that these organisations never understood what gacaca was really after. The process explicitly excluded lawyers for two reasons. First, as noted, there were hardly any. Second, there was a widespread fear among many Rwandans – the government, the general population and scholars and commentators alike – that lawyers would distort the hearings. Lawyers would be too dominant, they would intimidate participants and formalise the atmosphere and they would lead to impossibly long, drawn-out trials. Following ICTR-like rules meant that the backlog of 130,000 imprisoned suspects would have taken a hundred years, give or take a few dozen, to clear up. Who would that help? On the other hand, the absence of lawyers meant the community could own the trials, which Clark found was in fact the case in many, though by no means all, of the gacaca locations.

To the non-Rwandan observers, greater public participation was nothing less than an invitation to mob justice, which Clark insists was mostly not the case. After all, he points out, about 25 per cent of all cases resulted in acquittal, hardly what one might have expected from vigilante justice. This result might also have reflected the important if neglected reality that the judges actually reflected Rwandan society as a whole, with the majority of popularly elected gacaca judges being Hutu. This also likely accounts for the fact, largely unknown until now, that some gacaca jurisdictions actually allowed open discussion of alleged RPF crimes, though it’s true that no prosecutions were permitted. Still, Clark says, fears by some non-Rwandans that the government really controlled the process was significantly exaggerated. Kigali’s reach was limited; the further from the capital the less its capacity to intervene. There was ‘scope for local communities to direct gacaca in ways that directly contested government policy’.

Clark reminds us that the RPF government that had approved gacaca was in no way a homogenous, united body. Like governments everywhere, it contained different factions – RPF Ugandans, RPF military, RPF political hierarchy, survivors, diaspora returnees, Hutu allies. Many others also had views about and influenced the nature of gacaca – local people, judges, lawyers and non-lawyers, urban elites and rural elites. As a result, gacaca was ‘the product of protracted debates and complex political compromises among different factions of a divided state and disagreements among international and domestic actors over the most appropriate responses to the genocide crisis.’

In the same way, Clark also reminds us, gacaca itself wasn’t run homogeneously nor were its results homogenous: ‘A gacaca jurisdiction in one village may differ in key respects from another less than a kilometer away … local influences are crucial to any understanding of the process.’

Finally, he importantly notes that a proper perspective is needed when assessing gacaca. There are no magic bullets in the pursuit of transitional justice and reconciliation: ‘A major challenge for gacaca has been handling overly lofty expectations about what it can achieve in the post-genocide environment.’ Those with unrealistic expectations include not only survivors and some elements of the government, but those outsiders who began, remained and ended as unforgiving gacaca critics. Many of the latter, Clark persuasively shows, never understood the complexity of many aspects of the gacaca process or the diverse objectives it was intended to serve.

Looking at the actual complexity, Clark isolates nine expressed objectives of gacaca and analyses each of them. These included clearing the backlog of genocide cases, improving prison conditions, economic development, truth, peace, justice, healing, forgiveness and reconciliation. (Clark provides a useful introduction to these separate and sometimes incompatible concepts.) All but economic development through gacaca he finds feasible, but the results actually produced, he concludes, were highly variable. He considers that successes include handling the enormous backlog, delivering retributive justice, facilitating crucial processes of truth-telling and truth-hearing (two distinguishable matters, he shows), and providing for positive peace by creating ‘a dialogical space for the resolution of past conflicts, which is critical to sustaining more cohesive relations in the long run’. But results varied in different communities. In some, restorative justice, healing, forgiveness and reconciliation – all of which are long-run in nature – are just ‘distant prospects or have even been undermined by people’s experiences of gacaca itself’.

Clark repeatedly emphasises some of the exceptional aspects of the gacaca courts. Above all, there are the scale and the numbers involved. Clark does not make the point that the genocide itself was unique for its ‘popular’ nature – the huge numbers of ordinary Rwandans who participated. That was then reflected in the huge numbers of low-level suspects left rotting in prison. The ICTR and the national justice system, just getting back on its feet, were dealing, slowly, with what everyone called the ‘big fish’ among the accused genocidaires. How would the 130,000 small fry be handled? Gacaca, a traditional grassroots justice system, became the inspiration, but it was magnified beyond all recognition. No fewer than 250,000 local judges were freely elected to hold court in 11,000 jurisdictions. Even though the number of judges was eventually reduced to 170,000, this was a staggering undertaking for a wrecked state still traumatised and just beginning to meet the challenges of reconstruction. And it didn’t end there. Gacaca, writes Clark, is ‘unique among post-conflict judicial structures around the world in its mass involvement’. From the start it was intended as a popular process, run by citizens at the local level and free from political or legal interference. Clark found that the further the courts from Kigali, the more real this freedom was.

But gacaca’s most remarkable characteristic was also its most controversial – the very mass involvement of the citizenry in hearing and prosecuting genocide cases. Not only were lawyers not involved; they were explicitly barred from all hearings in order to create an environment where the community could feel more comfortable than in the highly formalistic and inherently adversarial nature of conventional courts. Locals could speak more openly of their experiences and engage meaningfully with perpetrators. The upshot would be to maximise the community’s sense of ownership over the process and its consequences. I predict that gacaca’s critics in the international human rights world will dismiss this point as overblown.

Let me record some of the other positive accomplishments that Clark concludes gacaca offered:

- It empowered many who had otherwise been marginalised in national life, especially women, who have played central roles as judges, participants and witnesses. This fact has generally been ignored entirely.
- ‘Evidence from a wide range of communities indicates that gacaca provides a vital dialogical space in which Rwandans tell and hear narratives about the events and effects of the genocide. While challenges … have emerged over time, gacaca has provided a forum for collective decisions that has not occurred elsewhere in Rwandan society. In doing so, gacaca has fulfilled a vital truth function in pursuit of justice, healing and reconciliation.’
- ‘Gacaca has generally succeeded in facilitating peace and justice, although it has faced major obstacles in fulfilling these objectives.’

But readers must not conclude that Clark views everything with rose-colored glasses. He has hopes, but not illusions. He sadly concludes, for example, that ‘reconciliation is at best a distant result in most of the country, although gacaca constitutes an important starting point in this process.’ He bases this judgment in part on the behaviour of the perpetrators. As Jean Hatzfeld also found and powerfully recorded in ‘Machete Season’, only a small minority of confessed killers expressed genuine remorse for their crimes. Most claimed to be either bystanders when crimes were committed or were coerced to kill by their betters. These excuses made many Tutsi more cynical than ever, undermining any possibility of reconciliation. Similarly, the failure to try any accused RPF men angered Hutu. Yet even here Clark finds some rays of hope. His research, he believes, shows that often, over time, even these cynics have forged better relations and developed new forms of dialogue. We have little choice here but to hope Clark is right. The alternative, after all, is unthinkable.

Clark’s views on gacaca and reconciliation suggest the standards by which he judges success. Given the extraordinary circumstances, the puny resources and the absence of any viable models, his expectations are decidedly modest. This seems to me the right perspective for judging gacaca. And who would assert that the South African Truth and Reconciliation Commission was more successful, or any other of the world’s abundance of TRCs, or the ICTR or ICTY? If we take the context into account, as any sensible observer surely must, almost any successes can be considered a small triumph in a situation where thousands of small triumphs are ultimately needed.

Nor is Clark unaware of the flaws of gacaca, some of them inherent. He believes, as others have argued and has been true of other TRCs, that many accused gamed the system; they confessed to lesser crimes than they actually committed in order to get a lighter sentence. Others baldly lied, denying everything. Accused genocidaires, it seems, organised themselves into ‘syndicates of liars’ who colluded to hide evidence. Survivors have been threatened if they testify, and some witnesses have been killed. All of this is, of course, deeply painful for survivors. But no legal system in the world, not even the most sophisticated, is free of these challenges.

Clark also makes clear that Tutsi were not the only victims. A number of confessed genocidaires had family killed after the genocide by the RPF. Indeed one of Clark’s key Hutu informants had a relative killed. While that murder was raised at gacaca hearings, the judges ruled that it was outside the mandate of gacaca, which was exclusively to try Hutu for killing Tutsi in the genocide. The message this sent to the entire country hardly needs elaboration, though how the system could have handled an even larger caseload is hard to imagine. Significantly enough however, this very informant later joined the RPF out of self-preservation. ‘If you don’t vote RPF,’ he told Clark, ‘you risk yourself’ – another sad reflection on Rwandan society today.

Clark criticises the Rwanda government for the way it distorts the country’s history. The discourse underlying gacaca draws on an interpretation of that history that claims Rwandans have really always been one people. That’s why using ethnic designations, except when speaking about the genocide, is now banned. Colonial rulers and Hutu leaders are blamed for dividing a united country for their own gain.

Now it can’t be repeated too often that there’s nothing about Rwanda that doesn’t excite major differences of opinion, including its pre-colonial history. And insisting, as the government does, that Rwanda was some kind of pre-colonial arcadia before it was spoiled by white intruders is without question a highly idealised, romanticised picture. But it is true that large-scale massacres of one group by another did not begin until the country became independent under Hutu rule. It is true that the German and Belgian colonial rulers rigidified the divide between Hutu and Tutsi. It surely is true that more than three decades of Hutu governments further exacerbated this divide. So it’s not too great a stretch for the government to paint this picture.

As well, isn’t it healthy if Rwandans accepted the notion that they once had been, and therefore might again be, a united people? That no one in Rwanda is an alien? Isn’t that a way to get Hutu to stop trying to get even for the injustices that Tutsi rulers once inflicted upon them, long ago? Isn’t it a way to get Tutsi to end their nostalgia for a blissful past where they were they unchallenged rulers? Of course it is also entirely true that this discourse, if accepted, would be of inestimable benefit to the Tutsi minority today. After all, if all Rwandans are one people, if there are no such entities as Tutsi and Hutu, it means the Tutsi are no longer a minority who rule over a majority of perhaps disgruntled Hutu.

Yet where Clark is surely right is his assertion that the very idea of restoration, of restoring Rwanda to some pristine past, is itself utopian. His research showed that most Rwandans still do not accept the notion of a once-united nation, and why should they? It was never true, above all in the past turbulent 100 years. There’s been precious little unity to which the country can revert. While it’s true that in the first 17 years of Habyarimana's regime, the massive anti-Tutsi violence of the Kayibanda years ended, and that some people got along more or less harmoniously, no one was ever left unaware of their ethnicity or who ultimately ruled the roost. If teachers didn’t remind their students, the quota system for Tutsi always did. And if any illusions had ever been harboured, the genocide ended them forever. So reconciliation, says Clark, cannot happen by restoring anything. Only a new beginning can ever hope to achieve that, in a process that will take many years.

One might go further and wonder whether reconciliation is ever possible in the lifetime of those who were part of the genocide. Many mothers of South African activists murdered by the apartheid government made clear to the Truth and Reconciliation Commission that despite all the confessions in the world, they are never going to forgive the people and the system that was responsible. Personally, I’m with them. But Clark is more hopeful. Gacaca, he believes, ‘constitutes an important starting point for reconciliation. It has already reaped significant restorative dividends in some communities.’ We can only hope that he’s reading his evidence properly.

But he has more to say about this, and it’s really one of several major conclusions, or lessons, he draws from his impressive study. The first relates to other societies who are seeking community-based processes to help in recovering from mass atrocities. There are, alas, never a shortage of such societies. Clark mention northern Uganda and the Lord’s Resistance Army, the eastern Congo, Darfur and Timor-Leste. Today we can add Ivory Coast. Tomorrow it might be Libya. ‘The gacaca experience highlights that major innovation, including melding customary and modern law, can yield substantial benefits for the population provided those processes can navigate inevitable tensions between issues of elite control and popular ownership, and between punitive and reconciliatory objects.’ These are pretty dramatic ‘ifs’, as his book repeatedly demonstrates.

Clark also has commonsense advice both for Rwanda and countries in comparable situations. ‘As the history of Rwanda after 1959 shows, periods of apparently peaceful co-existence between Hutu and Tutsi have tended to give way to mass violence because … the root causes of conflict were not addressed… If a post-conflict institution such as gacaca aims to build peace, then it must respond to the deep-rooted motivations of the population that led it to perpetrate mass violence.’ Research has shown that among the most reliable predictors of conflict in Africa since independence has been previous conflict. Too many conflicts, both within and between states, have been temporarily ended without the underlying basis for them ever having been properly addressed. Heaven knows that getting at the root cause is profoundly complicated. But as Clark says, failure to do so is an invitation to future conflict.

As for Rwanda itself, he reminds us that ‘[t]he reverberations from gacaca will be felt for many years to come… If engagement between parties ceases at gacaca, however, there is little chance of reconciliation occurring. Reconciliation, and the engagement that is a bridge to facilitating it, are arduous, long-term processes.’ Which means, in my understanding, that it’s not just the justice system that is responsible for assuring the kind of ambience that reconciliation demands. We can say that it takes an entire nation to achieve genuine reconciliation. All aspects of Rwandan society, and above all every activity involving the government, must send the same message. There must be a culture of reconciliation embracing all members of the national community. This needs to include the media, elections, commemorations, education, history, politics and civil society. Who would say that such a culture exists today in Rwanda?

*Phil Clark, ‘The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice Without Lawyers’, Cambridge University Press, 2010, pp 355 + 33.

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