The Closing of the Gacaca Courts and the Implications for Access to Justice in Rwanda
With the Gacaca courts and the International Criminal Tribunal for Rwanda (ICTR) closing this year, Rwanda will have to find a way to ensure that a lack of access to justice in 2012 does not undo and reconciliation achieved over the last 18 years.
Naomi Kok, Research Intern, Conflict Prevention and Risk Analysis, ISS Pretoria
Rwanda’s traditional mechanism for resolving
civil disputes; the Gacaca courts, will officially be closing on the 4th
of May 2012. The Gacaca
Courts have tried the bulk of Rwanda’s genocide related cases. As of July 2012
the International Criminal Tribunal for Rwanda (ICTR)’s main body is also
closing and will no longer hear any cases except for appeals, which are to be
completed by 2014. These developments raise questions about what avenues will
remain open for ordinary Rwandans who have not yet had their cases heard.
It is quite
likely that only the elite will be able to use Rwanda’s legal systems, whereas
the Gacaca courts are accessible to anyone. While Rwanda has made great strides
toward national reconciliation, the government should tread carefully around
the issue of the Gacaca and the ICTR closing. If Rwandans feel they are denied
justice in 2012, it could lead to the suffocation of what reconciliation has
already been achieved.
In 1994 Rwanda witnessed
the genocide that left more than 800 000 Rwandans dead, and thousands more
displaced. The genocide was initially a plot to exterminate the Tutsi. However,
after the largely Tutsi Rwandan Patriotic Front (RPF) led by President Paul
Kagame, managed to take control of Kigali and end the genocide, thousands of
Hutus fled across the border into the Democratic Republic of Congo, where they
still live today.
With the country
torn apart, the task of prosecuting the perpetrators of the genocide was
enormous. After 1994, Rwanda’s legal infrastructure was severely damaged. The
government prioritized regaining the human and material resources of the
judicial system, but even so it was not able to absorb the number of cases
awaiting trial. The prospect of prosecuting thousands of civilians and almost
the entire former civil service, is what made Rwanda look towards the Gacaca
courts.
In Kinyarwanda
the word for reconciliation is ubwiyunge,
which refers to the resetting of a broken bone. This is what the Gacaca aims
for - healing between victims and perpetrators. In the Gacaca courts people
from the community come together and the elders hear the cases. Through this
system category two, three and four accused criminals (people accused of acts
of genocide, causing grievous bodily harm and looting) were prosecuted. All
genocide crimes and genocide related crimes could be tried in the Gacaca
courts, except if they were committed by government officials or top level
planners, in which case they fall under the ICTR jurisdiction.
The Gacaca
courts offer Rwandans a form of participatory justice, where they can come
together as community members, and have the elders hear the cases. Moreover,
Gacaca court elders can give sentences of up to life imprisonment, making it a
suitable judicial mechanism to try crimes as severe as acts of genocide. In the
Gacaca court, the victims watch as perpetrators are sentenced by people they
know, instead of by foreign judges. This factor of physical proximity has a
great impact of giving Rwandans a tangible sense of justice. The Gacaca courts
also provide the opportunity for grievances to be aired in public, which is
vital in a country where victims are living side by side with perpetrators.
There is a possibility for compensation, where perpetrators could make a gift of
a cow to their victims, for example, to aid in reconciling the two parties.
Perhaps most important for healing, the Gacaca offers victims an opportunity to
ask the perpetrators about the location of their relatives bodies. In Rwandan
society, it is important to visit the graves of ones relatives. Finding out
where the bodies of ones murdered relatives are, provides a sense of closure.
In this way the Gacaca courts gave something to ordinary Rwandans that no other
court could.
In addition to
the traditional Gacaca courts and the ICTR, Rwanda does have its own
functioning judicial system. However, the Rwandan courts mainly deal with high
profile cases such as those of genocidaires
that are extradited to Rwanda. Also, the Gacaca courts do not hear any cases in
which a Hutu accuses a Tutsi of crimes during the genocide. In fact, it is only
the ICTR that would hear such cases.
In Rwanda, the
genocide is officially seen as genocide against the Tutsi. However, in any
conflict situation, there will be illegal acts committed by members from both
sides. Kagame tried to stop the Tutsi revenge attacks on the Hutu after he
regained control of Kigali, but it cannot be denied that these attacks took
place. National reconciliation is a high priority for the Rwandan government,
and it can only be successful if approached as the reconciliation of all
Rwandan nationals. Reconciliation cannot be achieved if only the Tutsi have an
avenue through which they can have their cases heard.
In many ways,
when a tragedy such as genocide befalls a country, the most constructive thing
to do for the people would be to move on. However, the pain for many, many
Rwandans is still all too real. There is even a phrase for the people who were
traumatised in the genocide, they are called the bapfuye buhagazi, the walking dead.
In a country
where there is a taboo on identifying someone as either Tutsi or Hutu, and
where journalists may be imprisoned when speaking of the genocide ‘in which
Rwandans killed one another” instead of the genocide ‘in which Tutsi were
killed by the Hutu,’ there is an obvious need for reconciliation. A refusal to
acknowledge that there are Hutu and Tutsi Rwandans living in Rwanda and that
people from both sides make up the bapfuye
buhagazi is far more of a danger to national reconciliation than the
criminalised act of allegedly denying the genocide.
The ICTR, even
though it has found many genocidaires
guilty, has often been a disappointment to Rwandans. Once the Gacaca courts are
closed, there will remain a need for Rwandans especially the Hutu who have not
had easy access to airing their grievances, to find justice and to be part of
the national healing process. If this reality is not faced, then the government
would have effectively fuelled the fire that has been raging silently in Rwanda
for generations. Rwandans need an avenue to reconciliation, but the refusal to
include Tutsi prosecutions into the Gacaca has provided an obstacle to this.
The bapfuye buhagazi need to find
justice, so life can continue. It is now a crucial time for Rwanda to plan
ahead and re-examine its stance on trying genocide related cases. It is also
vital that in whatever way the government continues to prosecute crimes related
to the genocide, an avenue is provided for Hutus to also make cases against Tutsis.
If this is overlooked, national reconciliation will never be achieved, only the
suppression of individual sentiments, and this is a danger to the stability of
Rwanda.
The closing of
the Gacaca without providing any way for Hutus to have their cases heard, will
delay justice, and this in turn will delay national reconciliation. Since
justice delayed is justice denied, an irreversible setback will be created for
Rwanda’s national reconciliation. The time for the end of Gacaca may not yet be
here, but the time for the inclusion of Tutsi defendants in Gacaca trials is
way overdue.
