The legacy of Gacaca courts.
Gacaca courts left a
long-lasting impact in the Rwandan society, especially in the legal sector. It
is rare to talk about the judicial background without mentioning Gacaca courts.
‘Gacaca’, which translates to justice ‘at the
grassroots level’, was a traditional judicial communal mechanism used to settle
family and community disputes. Its major objective was to reintegrate those in
the wrong back in the community and in this way lead to reconciliation. People
of integrity, trusted elders and leaders in the village known as Inyangamugayo
facilitate a discussion that any member of the community can take part in. In
2002 Rwanda revived its traditional Gacaca Courts. Five main reasons: 1. Truth;
2. Speed 3. Stand up to the culture of impunity; 4. Strengthen Unity and
Reconciliation and 5. Involve every one and test the capacity of the Rwandan society
to solve its own problems. The activities of the Gacaca courts were carried out
in two phases: Information gathering phase; Trial phase. Gacaca courts
activities were carried out at three levels of jurisdiction: The Gacaca Court
of the Cell; The Gacaca Court of the Sector; and The Gacaca Court of Appeal. Nationwide
there were 9013 Gacaca Cell courts, 1545 Gacaca Sector courts and 1545 Gacaca
courts of appeal.[1]
The jurisdiction of the
Gacaca court was in this order. The Gacaca Courts had primary competence of
collecting information from Cell level, aided by the people in their respective
areas of the jurisdiction. These people could meet in the “General Assembly of
the Cell level of Gacaca Court” and put the suspect in the following categories
1st,2nd and 3rd. After identifying the suspects placed in the 1st category
Gacaca courts would refer him/her to ordinary Courts To try the suspects in 2nd
and 3rd category, basing on the weight of the crimes a suspect had allegedly
committed due to which he/she was placed under category 2 or 3 (Sector level).
Gacaca Courts also had competence to try persons who committed offences against
property (Cell level); At the appeal level, Gacaca courts had the competence to
try cases at the appellate jurisdiction cases admitted for review based on new evidence.[2]
Contemporary Gacaca draws
inspiration from the traditional model, by replicating a local community-based
justice system with the aim of restoring the social fabric of society. The
courts are credited with laying the foundation for peace, reconciliation and
unity in Rwanda. The Gacaca courts officially finished their work in June 2012.
Gacaca courts were given competence similar to other judicial systems, they
also had the special competence of investigating the manner in which crimes
were committed, a task normally carried out by the prosecution department. Gacaca
Courts were created, in each Cell, Sector, District “or Town” and
Province/Kigali City of the Republic of Rwanda. This court was responsible for
handling crimes of Genocide and other crimes against humanity committed in
Rwanda between October 1st, 1990 and December 31st, 1994 within the limits of
the law.[3]
The idea of the Gacaca
system also emerged from the 1995 Kigali[4]
international conference on genocide, but was only recommended for dealing with
cases not involving crimes against the person. The idea of the Gacaca system
was subsequently re-examined in various meetings at Urugwiro and endorsed later
by a commission of fifteen members established on 17 October 1998 by the then
president Pasteur Bizimungu. Due
to the poorly perceived performance of the Specialized Chambers, it was
concluded that the classic judicial system was ill suited to manage the cases
of the detained suspects, those of newly incarcerated suspects and those of
many other suspects who were still at large. The 2001 Gacaca Organic Law
created two parallel systems to try suspects of genocide: not only did it
create the Gacaca courts but it also abolished the Specialized Chambers and replaced
them with ‘ordinary courts’. The latter were entrusted with jurisdiction to
hear and try cases involving individuals whose criminal liability placed them
in the first category and followed the rules provided for by the 1996 Genocide
Organic Law. Only cases involving individuals whose criminal liability placed
them in the second, third and fourth categories (later reduced to the second
and third categories by the 2004 Gacaca Organic Law) were entrusted to Gacaca
courts, organised according to a pyramidal hierarchy based around four of the
country’s administrative levels, namely cells, sectors, districts, provinces or
the City of Kigali. Citizen
participation in the Gacaca proceedings was the cornerstone of the Gacaca
system.[5]
According to the 2001 Gacaca
Organic Law’s preamble, the rationale for the community’s involvement in the
proceedings was that crimes ‘were publicly committed before the very eyes of
the population, which thus must recount the facts, disclose the truth and
participate in prosecuting and trying the alleged perpetrators’. The Gacaca
courts’ closeness to the community where the crimes were committed provided a
sense of collaboration among the members of the community while searching for,
and eventually reaching, the truth. Gacaca trials took place at the scene of
the crimes and involved members of the community who were affected, including
the accused and their families, victims and their families, bystanders and
witnesses. The Gacaca system’s proximity to the local community empowered the survivors
of the genocide against the Tutsi to speak out and to challenge the statements
of the perpetrators so the truth could finally be told. The lay judges of the
Gacaca courts were not even required to be well educated (schooled), let alone
to have legal training. A basic knowledge of reading and writing the national
language (Kinyarwanda) was the only condition required in terms of skills. In
addition, a judge had to be a person of ‘integrity’ and at least twenty-one
years old. The
lack of basic training thus put the Gacaca courts’ competence, impartiality and
independence (all essential constituents of the fundamental right to a fair
trial) into jeopardy because it deprived the courts’ lay judges of the
necessary autonomy to discharge their responsibility. In turn, the lack of
autonomy made them totally dependent on the relevant government office, and in
particular on the lawyers of the National Service of Gacaca Courts (hereinafter
NSGC).
Even though these efforts to
strengthen the Gacaca court judges’ capacity to discharge their responsibility
are commendable, given the low level of education and literacy of the majority of
the Gacaca court judges it would be naive to believe that this short training
and amanual/booklets on the complex law of the Gacaca system mitigated their
lack of prior legal experience, allowing them to meet the standard of legal
skills and thus guaranteeing their impartiality when addressing the criminal
acts and/or conduct resulting from the genocide against the Tutsi. The Gacaca
courts’ proceedings were organized into two different phases: the pre-trial
phase and the trial phase. The pre-trial phase involved collecting information
about the genocide against the Tutsi and was conducted at cell level. The trial
phase for looted property was also conducted by Gacaca courts at cell level (at
the first and last resort) whereas the trial phase for crimes against persons
was conducted by the Gacaca courts at sector level, with the possibility to
appeal at the Gacaca appeal courts of the same level. The Gacaca pre-trial
phase – focused on uncovering the truth – had the merit that it determined the
factual circumstances of the violations that took place in every cell in the country
and allowed for the identification of those responsible. Pre-trial
responsibility was entrusted to members of the cell, including victims and
suspects. The
performance of Gacaca courts in addressing an enormous backlog of genocide
cases in a very short period of time can be attributed to the flexibility and
adaptability of the Gacaca legal framework, which allowed continuous and
constant amendments to be adopted in order to meet the government’s need to
speed up the trials of the genocide caseload.
The 2001 Gacaca Organic Law was
successively amended many times. The transitional government of Rwanda to
repeal the 2001 Gacaca Organic Law and pass a new one, Organic Law No. 16/2004
(hereinafter the 2004 Gacaca Organic Law), before a single sentence had even
been handed down. The 2004
Gacaca Organic Law also repealed the 1996 Genocide Organic Law and became the cornerstone
of the Gacaca system law until the closure of the Gacaca courts in June 2012. Like
the 2001 Gacaca Organic Law, the 2004 Gacaca Organic Law was amended three
times – in 2006, 2007 and 2008 – in order to accommodate emerging realities in
the execution of the Gacaca courts’ mandate. Specifically, the first amendment
of 2006 – which compared with the subsequent amendments appears minor but no
less necessary – concerned the Gacaca courts’ jurisdiction ratione loci, which
had to be revised following a restructuring of Rwandan administrative entities.
More substantively, the 2007 amendment reviewed the criteria for the categorization
of crimes, and a number of accused in the first category were transferred to
the second category, thereby relieving ordinary courts of a backlog of genocide
cases. Procedurally, this amendment also doubled the number of panels in the
Gacaca courts of the sector and in the appellate courts in order to speed up
the Gacaca trials and appeals.
For the same reasons, the
2008 amendment shifted many first-category suspects/accused to the sector-level
Gacaca courts. The Gacaca courts concluded their proceedings on 18 June 2012,
that is, in only ten years.
With the Gacaca proceedings,
not only were the victims empowered to speak out and confront their aggressors,
but the affected population or community also had the opportunity to
collectively shed light on the circumstances of the genocide against the Tutsi. Based on the confessions of
genocide perpetrators, the perpetrators, victims and community at large
mutually agreed upon and validated the circumstances of the atrocities and thus
developed a mutually shared understanding of the genocide against the Tutsi at
community level. Most importantly, by pleading guilty and apologizing for their
actions, genocide perpetrators publicly acknowledged the wrongful nature of
what they had done.
To address the fact that
there were thousands of accused still awaiting trial in the national court system,
and to bring about justice and reconciliation at the grassroots level, the
Rwandan government in 2005 re-established the traditional community court
system called “Gacaca”. In the Gacaca system, communities at the local level
elected judges to hear the trials of genocide suspects accused of all crimes
except planning of genocide. The courts gave lower sentences if the person was
repentant and sought reconciliation with the community. Often, confessing
prisoners returned home without further penalty or received community service
orders. More than 12,000 community-based courts tried more than 1.2 million
cases throughout the country. The Gacaca trials also served to promote
reconciliation by providing a means for victims to learn the truth about the
death of their family members and relatives. They also gave perpetrators the opportunity
to confess their crimes, show remorse and ask for forgiveness in front of their
community.[6]
The Gacaca process and
experience has been an important phase in the history of our country. It has
been a period when we sought to reunite our nation, inspire confidence in the
administration of justice and hold each other accountable for our actions. Gacaca
had its imperfections. It received criticism both from within and outside
Rwanda, yet those criticizing offered no viable alternatives that could deliver
the results we needed. We had three choices: first was the more dangerous path
of revenge, or secondly, grant general amnesty, both of which would have led to
further anarchy and destruction. But we chose the third and more difficult
course of dealing with the matter decisively and restoring the unity and
integrity of the nation. We turned to Gacaca, our traditional conflict
resolution mechanism, and adapted it to respond to the challenges facing us. Today,
Rwandans have rediscovered their collective self-worth and confidence to help
us find solutions to other challenges we have. Equally, the value and
effectiveness of Gacaca will be measured against the record of other courts,
principally the International Criminal Tribunal for Rwanda (ICTR). The ICTR has
tried about sixty cases, cost about 1.7 billion dollars and left justice wanting.
Yet, at significantly less cost, the Gacaca process has had the highest impact
in terms of cases handled, and has delivered justice and reconciliation at a
much higher scale. For us the lessons of Gacaca go beyond justice and embrace
other facets of national life.[7]
Gacaca has empowered
Rwandans in ways few could have envisaged. It has illustrated the liberating
value of truth. When truth came out in court, from both the perpetrators and
survivors of genocide, from witnesses and the community – freely, not at the prompting
or tutoring of paid lawyers – it set everyone free and prepared the ground for
the restoration of social harmony. It was then possible to genuinely seek and
be granted forgiveness. This has been at the heart of our unity and
reconciliation efforts, and we are stronger as a nation as a result. Gacaca was
an important end in itself, for justice and reconciliation – and in fact, it
served a purpose far greater than that. With reconciliation – and peace, calm,
and sense of purpose it brings – Rwanda has been able to make progress that is
evident. The spirit of openness and readiness to break with the past and start
afresh that has been embedded in everything we do will undoubtedly be one of
the key legacies of Gacaca. Central to everything we do has been the need to
empower citizens to make decisions about what directly affects their lives.
Nowhere has this been more evident than in Gacaca where there has been
community level discussions and collective decision making, from the vetting of
judges, gathering of evidence and hearing of cases to delivering the verdict. It
has been a process where the contribution of every Rwandan has been valued.
This has led to mobilizing our cumulative strength towards common goals, and
restoring respect for the sanctity of life, resulting in increased productivity
of our country in many ways. It is often said that in conventional judicial
systems, justice is rendered in the name of the people, even when they really
have had very little to do with it. Gacaca has been justice literally
administered by and in the name of the people. This has resulted in
selflessness and patriotism in the citizenry, as exemplified by the
Inyangamugayo. It is the spirit of the new Rwanda – bold enough to tackle
complex challenges together.[8]
Gacaca proceedings started
by issuing summons to all parties concerned,[9]
indicating the date of trial. Before the
date of trial the accused was permitted to call his witnesses as he wished. On the
day of the trial, the court would first read the provision of the Gacaca law
that: ‘Any person who committed the offence of genocide and other crimes
against humanity committed between 1 October 1990 and December 31, 1994, may
confess, plead guilty, repent and ask for forgiveness before a duly constituted
competent bench.’[10]
In order to be accepted as
confessions and benefit from reduced jail sentence,[11]
guilty plea, repentance and apologies required the defendant to give a detailed
description of the confessed offence, ‘how he or she carried it out and where,
when he or she committed it, witnesses to the facts, persons victimized and
where he or she threw their dead bodies and damage caused, reveal the co-authors,
accomplices and any other information useful to the exercise of the public action,
and apologize for the offences that he or she had committed.’ If the accused
did not plead guilty, the Gacaca court judges mentioned the accusations and
then welcomed witnesses supporting the charges. After that, the suspect was
given the opportunity to defend himself since there were no lawyers and provide
evidence or witnesses to his account. Then the floor was opened to the general
assembly to provide testimonies and express their views on the trial. At this
stage new witnesses from the audience would engage in the discussions to give
their opinions about the case. On average, trials would last around eight hours
in open spaces in full view of the community and in certain instances, a case
would take the whole day, from morning to evening and, if it was not complete,
then, it would proceed on another day determined by the court, until the case
was concluded. Once the court found that enough information had been obtained,
the president of the court asked the secretaries, who were also among the lay
judges, to read to the audience what had been written during the day. If there
was a complaint about precision or missing information, the secretaries made
relevant correction, and asked parties and witnesses to sign what they had
said. Everything said and done during the Gacaca session was recorded in the
notebook of activities. Before
the president closed the court, he announced the next session and what cases
would be heard at that hearing. Sometimes the court adjourned or pronounced its
sentence the same day, but usually the sentence was pronounced over the next
few days. The final decision, rested with the inyangamugayo who had to weigh
all the evidence available and pass judgment on the defendants after private
deliberations. If the judges failed to reach a consensus, before deciding on
the person’s guilt, a majority decision of the judges would suffice. This
unique kind of court process led to swift trials in a relatively short time.[12]
The official opening of the
Gacaca jurisdiction process took place on the 18 June 2002 and the activities
of the courts were officially closed on 18 June 2012. This period of time
marked a historical achievement in the judicial sector in Rwanda. After the 1994
genocide against The Tutsi everything was a priority including providing justice
to the victims. Gacaca courts was away to do so, it was a perfect way to apply
transitional justice with an inspiration in Rwandan culture. Even though Gacaca
faced different challenges like; using lay judges, but some trainings were
offered by the government, this can not undermine the big impact Gacaca courts
made in Rwanda.
[1] https://www.minijust.gov.rw/fileadmin/SPEECHES-2019/20.02.20_TRANSITIONAL_JUSTICE_ppt_for_students.pdf
[2]
Idem
[4] The Right of Victims of International Crimes to
Reparations in the Aftermath of the 1994 Genocide against the Tutsi in Rwanda, Yves
Sezirahiga, PhD thesis, Gacaca courts, the miracle solution to the genocide
caseload, page. 80
[5]
Idem
[7] https://www.paulkagame.com/speech-by-he-paul-kagame-president-of-the-republic-of-rwanda-at-the-official-closing-of-gacaca-courts/
[8]
Idem
[9] GACACA
COURTS VERSUS THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA AND NATIONAL
COURTS: LESSONS TO LEARN FROM THE RWANDAN JUSTICE
APPROACHES TO GENOCIDE, CHARITY WIBABARA, LLD Page 135
[10]
Idem
[11]
Idem
[12]
Idem
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