HUMAN RIGHTS WATCH
Rwanda is about to complete one of the most ambitious transitional justice experiments in history, blending local conflict-resolution traditions with a modern punitive legal system to deliver justice for the country’s 1994 genocide. Rwandan President Paul Kagame described the initiative as an “African solution to African problems.”  Since 2005, just over 12,000 community-based gacaca courts—deriving their name from the Kinyarwanda word meaning “grass” (the place where communities gather to resolve disputes)—have tried approximately 1.2 million cases. They will leave behind a mixed legacy.
Some Rwandans have welcomed the courts’ swift work and the extensive involvement of local communities, stressing that gacaca has helped them better understand what happened in the darkest period of the country’s history and has eased tensions between the country’s two main ethnic groups (the majority Hutu and minority Tutsi). Others are more skeptical: some genocide survivors complain that not all perpetrators were arrested or punished adequately for their crimes. Some of those convicted and sentenced to decades in prison maintain that trials were seriously flawed, that private individuals and government authorities manipulated the course of justice, that gacaca became politicized over the years, and that ethnic tensions remain high. On both sides, there are doubts, as well as tentative hopes, about gacaca’s contribution to long-term reconciliation.
This report acknowledges the enormous challenges the Rwandan government faced in choosing a system that could rapidly process tens of thousands of cases in a way that would be broadly accepted by the population. It explains the government’s decision to use gacaca to deal with the extraordinary circumstances it faced after the genocide and describes the government’s attempt to strike a balance between conventional due process and the overwhelming need for swift justice.
The report notes some of gacaca’s main achievements. Using dozens of cases, it also illustrates the price paid by ordinary Rwandans for the compromises made in the decision to use gacaca to try genocide-related cases, including apparent miscarriages of justice, the use of gacaca to settle personal and political scores, corruption, and procedural irregularities.
This report is not the first evaluation of the gacaca process. Avocats Sans Frontières (ASF) and Penal Reform International (PRI) have monitored the process closely since it began and have issued dozens of detailed reports on a range of topics related to gacaca. Rwandan human rights organizations, in particular the Human Rights League of the Great Lakes (LDGL) and the Rwandan League for the Promotion and Defense of Human Rights (LIPRODHOR), have also followed the process and have reported their findings. Books and scholarly articles have been written on gacaca as well. This report draws inspiration from these writings and raises some problems which have already been documented by others, but strives to analyze the gacaca process specifically from a human rights perspective, noting its accomplishments and its limitations in this context.
When the Rwandan Patriotic Front (RPF), currently the country’s ruling party, first took power in July 1994 after ending the genocide, it was confronted by the need to deliver justice for the killings of more than three-quarters of the country’s Tutsi population, as well as numerous Hutu who opposed the killings or tried to protect Tutsi. In total, more than half a million people perished in the span of only thirteen weeks. The challenge would have overwhelmed even the world’s most advanced justice system. In Rwanda, the task was made even more difficult because the genocide had killed a large number of judges and other judicial staff and had destroyed much of the judicial infrastructure.
A few months after the end of the genocide, Rwandan prisons were bursting at the seams with genocide suspects. By 1998, around 130,000 prisoners were crammed into space meant for 12,000, resulting in conditions that were universally acknowledged to be inhumane and that claimed thousands of lives. Conventional courts began trying genocide cases in December 1996, but had only managed to try 1,292 genocide suspects by 1998. At that rate, genocide trials would have continued for more than a century, leaving many suspects behind bars awaiting trial for years and even decades. The process might have been accelerated had foreign lawyers and judges been brought in to help, but the Rwandan government rejected such proposals.
Instead, the government proposed to set up community-based courts to try genocide-related crimes using the customary gacaca model. Aimed at speeding up genocide trials, reducing the prison population, and rapidly rebuilding the nation’s social fabric, the new form of gacaca, like its customary predecessor, would be run by local judges and would encourage participation of local community members. One of the government’s aims in encouraging community participation was to make ordinary Rwandans the main actors in the process of dispensing justice and fostering reconciliation. A series ofgacaca laws would regulate the genocide trials, mixing certain basic fair trial standards with more informal procedures.
Some government officials feared that gacaca might not be the right mechanism for genocide trials, given the gravity and complexity of the crimes. The customary form of gacaca had only been used for minor civil disputes—involving property, inheritance, personal injury, and marital relations—with more serious cases, such as murder, reserved for resolution by village chiefs or the king’s representative. These government officials worried that judges would struggle to correctly apply the law, given that many had no formal education or training. They warned of the risk of bias, stressing that the local setting meant judges would inevitably know the parties in a case which would reduce their objectivity and increase the risk of corruption. Most significantly, these government officials warned that gacaca procedures would fail to comply with Rwanda’s international fair trial obligations. Nearly 10 years after gacaca began, many of these concerns have turned out to be well-founded.
The concerns were overruled and, in June 2002, the Rwandan government launched a contemporary form of gacaca to try genocide cases, run by a new institution which later became known as the National Service of Gacaca Jurisdictions (SNJG). For more than two years, gacaca courts in 12 pilot areas used information provided by local community members to compile files on what had happened in each of these areas between 1990 and 1994. The courts drew up lists of victims and suspects, and classified the latter into four categories according to the severity of the alleged crimes. The most serious cases (category 1), involving mass murderers, rapists, and leaders who had incited killings, were transferred to the conventional courts; the rest were to be tried in gacaca.
The first gacaca trials started in 2005. They were set to end in late 2007, but the deadline was repeatedly extended over the following three years. In mid-July 2010, the government announced that the last gacaca trials in the country had been completed. However, two months later, it unexpectedly declared that gacaca would continue. This latest extension will allow the SNJG—tasked with oversight of the gacaca process—to review a number of cases of suspected miscarriages of justice and to allow for revision where appropriate. However, gacaca courts are not expected to handle new cases.
Rwanda’s experiment in mass community-based justice has been a mixed success. Many Rwandans agree that it has shed light on what happened in their local communities during the 100 days of genocide in 1994, even if not all of the truth was revealed. They say it helped some families find murdered relatives’ bodies which they could finally bury with some dignity. It has also ensured that tens of thousands of perpetrators were brought to justice. Some Rwandans say that it has helped set in motion reconciliation within their communities.
Yet there are multiple shortcomings and failures with gacaca: basic violations of the right to a fair trial and limitations on accused persons’ ability to effectively defend themselves; flawed decision-making (often caused by judges’ ties to the parties in a case or pre-conceived views of what happened during the genocide) leading to allegations of miscarriages of justice; cases based on what appeared to be trumped-up charges, linked, in some cases, to the government’s wish to silence critics (journalists, human rights activists, and public officials) or to disputes between neighbors and even relatives; judges’ or officials’ intimidation of defense witnesses; corruption of judges to obtain the desired verdict; and other serious procedural irregularities.
Many of these shortcomings can be traced back to the single most significant compromise made in choosing to use gacaca to try genocide cases: the curtailment of the fair trial rights of the accused. Although these rights are guaranteed by both Rwandan and international law, the gacaca laws failed to put in place adequate safeguards to ensure that all accused persons appearing before the gacaca courts would receive a fair trial. The gacaca laws tried to strike a balance by protecting some rights, including the right to be presumed innocent until proven guilty; modifiying others, such as the right to have adequate time to prepare a defense; and sacrificing others altogether, including the right to a lawyer. Dozens of cases mentioned in this report show how these due process shortcomings have directly contributed to flawed gacaca trials.
The government argued that traditional fair trial rights were unnecessary because local community members—who witnessed the events of 1994 and knew what really happened—would participate in the trials and would step in to denounce false testimony by other community members or partiality by the judges. Contrary to these expectations, however, Rwandans who witnessed unfair or biased proceedings decided not to speak out because they were afraid of the potential repercussions (ranging from criminal prosecution to social ostracism) and instead passively participated in the gacacaprocess. Without active popular participation, trials were more easily manipulated and did not always reveal the truth about events in local communities.
Another significant factor restricting the success of gacaca was the limited training given to gacacajudges, most of whom had little or no formal education and, in the vast majority of cases, no formal legal experience or training. Judges were not bound by evidentiary rules (explaining what types of evidence are admissible and the level of proof needed to convict a person) and were expected instead to rely on common sense and general principles of fairness. Courts had to provide reasons for their decisions, but were free to weigh the evidence as they saw fit. This led to contradictory results in different cases based on similar facts; to flawed decisions based, for example, on over-reliance on hearsay (words a person attributes to another who is not present at trial), and to convictions based on weak evidence. The fact that gacaca judges received no state remuneration also made the judges vulnerable to corruption.
Originally tried in conventional courts, genocide-related rape cases were transferred to gacaca courts in May 2008. Many rape victims based their initial decision to seek prosecution of the alleged rapist on the fact that conventional courts could enact measures to respect their privacy and could keep a woman’s identity confidential where necessary. The government’s decision to transfer their cases togacaca courts, by definition involving the local community, took them by surprise and left some feeling betrayed. The SNJG justified the decision by claiming that many rape victims were dying of AIDS and that the conventional courts were unable to deal with these cases sufficiently quickly. It emphasized that the decision was based on requests by thousands of women who were raped in 1994. However, it would also enable the Rwandan government to complete all genocide trials as quickly as possible and to end this chapter of its history. Although the law provided for gacaca courts to hear rape cases behind closed doors, victims still feared that the community-based nature of the courts would mean that the local population would know what the closed-door trials were about. On the other hand, some rape victims whose cases were heard by closed-door gacaca courts said that the experience was less traumatic than they expected.
One of the serious shortcomings of the gacaca process has been its failure to provide equal justice to all victims of serious crimes committed in 1994. Between April and August 1994, soldiers of the Rwandan Patriotic Front (RPF), which ended the genocide in July 1994 and went on to form the current government, killed tens of thousands of people. They also carried out other killings later in the year, after the RPF had gained full control of the country. Gacaca courts have not prosecuted RPF crimes. Initially, in 2001, gacaca courts had jurisdiction over crimes against humanity and war crimes, in addition to genocide. But the following year, as gacaca courts began their work, President Kagame cautioned against confusing crimes committed by RPF soldiers with genocide and explained that RPF crimes were merely isolated incidents of revenge, despite evidence to the contrary. Amendments to the gacaca laws in 2004 removed war crimes from the jurisdiction of the courts and a national government campaign followed to make sure that these crimes were not discussed in gacaca. Nearly 17 years after the genocide, Rwandans who suffered or lost relatives at the hands of the RPF are still waiting for justice.
As gacaca draws to a close, the Rwandan government faces another challenge: correcting the grave injustices that have occurred through this process. There have been numerous gacaca cases involving miscarriages of justice or serious procedural irregularities, many of which have not been resolved by existing gacaca appeals procedures. The government’s recognition in late 2010 of the need to correct miscarriages of justice is a positive step. However, the proposal to have such cases reheard in gacacarisks replicating the same problems and may not remedy the situation. A more appropriate mechanism might involve a specialized unit within the conventional court system, staffed with professional judges or other trained legal professionals, to review the cases. Fair and impartial handling of these cases is of paramount importance to the legacy of gacaca and to strengthening the Rwandan justice system in the longer term.