Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (39 page)

The gacaca process consists of two distinct phases. In the first phase, each community in the country will gather in a weekly public meeting to develop a limited record of the genocide in their community and to level charges against those they believe responsible for various genocide crimes. The task of the community meetings is primarily to draw up lists, such as lists of those who were killed in the genocide and those believed to have been responsible for their deaths. The Organic Law of 1996 divides genocide crimes into four categories, and under the gacaca law, each category is treated by a different level of court. It is up to the community meetings to determine the charges against individuals and categorize the crimes for which individuals are accused. In the second phase of the process, the lists of accused are forwarded to the appropriate level of gacaca court where they will be tried in open public trials before the full panel of judges for that court. The judges will have access to any case files that police investigators have developed to date, but the trials will depend primarily upon popular participation and testimony.
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As originally set up, there were four levels of gacaca courts, beginning with the smallest political unit, the cell, which groups approximately 100–500 families. Each cell elected 19 inyangamugayo, who were to be individuals of “integrity” at least 21 years of age, who then received a short training in legal procedure. The cell‐level panels of judges appointed representatives to the next level, the sector, the sector panel selected members for the district panel, and the district selected members for the province.
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In a reform in 2004, the province‐level gacaca courts were eliminated, and special gacaca appeal panels were created. Crimes in category 4, property crimes, are treated at the cell level, while crimes involving physical injury without death, category 3, are treated at the sector level, and category 2 crimes, people who killed under the orders of others or attempted to kill, are treated at the district level. Those accused of category 1 crimes, organizing the genocide, participating in rape, or being particularly zealous in killing,
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will continue to be tried in regular courts. Defendants in category 4 crimes have no right
to appeal, given the relative leniency of sentences. Those found guilty of category 3 crimes can appeal their cases to an appeals panel of the next level of gacaca court. Appeals for the most serious offenses are to the regular courts.
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The gacaca law also specifies sentencing guidelines, although gacaca courts have considerable leeway in determining sentences. The law encourages confession by offering those who have confessed reduced sentences and the opportunity to serve half those sentences doing community service.
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Excluded from consideration in gacaca are the cases of people who were killed in massacres carried out by the
RPF or in revenge killings. According to the government, these cases, even if they represent crimes against humanity, are to be taken to the regular courts.
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The election of gacaca judges took place quite successfully in October 2001,
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and training of judges occurred in April and May 2002 and was undertaken again after delays in the gacaca process. After numerous organizations expressed concerns about the ability of Rwanda to successfully implement gacaca nationwide, the Sixth Chamber chose to begin gacaca trials with a pilot phase. On June 19, 2002, gacaca meetings began in one sector in each of Rwanda's provinces. Based upon feedback from these proceedings, the Sixth Chamber made revisions to gacaca procedures, and on November 4, 2002, they launched gacaca trials in one sector in each district in the country.
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The date to expand the trials to all 9,001 cells, 1,545 sectors, and 106 districts in Rwanda was postponed numerous times until January 15, 2005. In subsequent months, gacaca courts began to
function in most communities throughout Rwanda.

Reporting on gacaca was initially quite positive, as observers praised the innovation of the government and spoke in almost romantic terms about gacaca's basis in Rwandan heritage.
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The initiative has received extensive support from international donors.
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Further, the gacaca initiative was very popular with the Rwandan public prior to its nationwide launch. In our survey, which was conducted after judges had been elected but before gacaca trials had begun, we found that 90.8 percent of people had a positive attitude toward gacaca.
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Our qualitative work in the same communities where we conducted our survey suggests that people feel that they have greater control over the gacaca process, that it will speed up the prosecution and release of prisoners, and that gacaca is more linked to the community and local processes of reconciliation.
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In contrast to the generally positive popular and journalistic impression of gacaca, human rights groups and international jurists have raised
serious concerns about the trials.
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Human rights experts have raised concerns about the competence of the trial judges, the impartiality and independence of gacaca courts, the susceptibility of the courts to government influence, and the lack of sufficient right to appeal in the original proposal. The sharpest concerns have been raised in reference to the lack of a right to defense counsel and of equality of arms between the prosecution and the defense.

While these human rights concerns deserve serious consideration, gacaca should not be condemned simply because it differs from classical Western courts, since gacaca does have a sound juridical basis.
Rather than drawing exclusively on classical Western common law and civil law traditions, gacaca draws in part on customary law. Many countries around the world have plural legal systems, with Western‐style courts operating alongside local courts or other institutions, either formal or informal, that settle civil disputes or enforce a (usually unwritten) legal code based on local cultural and religious traditions. Customary courts continue to function in many former colonies, particularly for civil disputes and family issues,
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but customary law most commonly gains notice when it is invoked in opposition to basic rights, as in attempts to use Islamic law to limit opportunities for women.
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While the new gacaca courts are not identical to traditional gacaca and have jurisdiction over more serious crimes than customary courts usually address, gacaca should not be rejected simply because it has roots in customary law rather than exclusively Western law. To regard customary law as necessarily inimical to human rights demonstrates a very narrow understanding of both the diversity and
the adaptability of customary law and may challenge the very notion of
the universality of human rights.

Gacaca also draws on the growing movement for
restorative justice, which takes into account community interests as well as the rights and interests of victims of crimes. According to Gordon Brazemore, restorative justice is “a three‐dimensional collaborative process” between victims, communities, and offenders, in which offenders are held accountable for their actions before the victims of their crimes and the communities in which they committed offenses and they are provided an opportunity to redeem themselves, generally through community service.
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In classical retributive judicial systems, crimes are seen as offenses against the state, and little or no consideration is given to the needs of the victims and communities in the aftermath of crimes. Restorative justice is a reaction against the overly formal practices of retributive courts and the exclusion and alienation of victims from the legal process. Neither the principles of customary law nor of restorative justice can be invoked to justify violations of basic human rights, yet the fact that both systems
function in countries with comparatively good human rights records, such as the United States, Canada, and New Zealand, suggests that classical retributive judicial practices are not the only judicial approaches capable of providing fair trials. Human rights standards are framed in broad and general terms that, for the most part, do not dictate any particular course of action to be taken to achieve specific standards. Donoho speculates that the openness in human rights doctrines to allow diversity was probably intended by the states negotiating and ratifying treaties in order to preserve their “sovereign prerogatives.”
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The ability to interpret human rights standards in ways that are relevant to specific locales is necessary to protect international diversity without denying the universality of human
rights standards.

While the basic principle of limited sovereignty is widely accepted, most international human rights institutions have not developed a jurisprudence to allow for the recognition of diversity in the interpretation of human rights norms.
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The one exception is in the European human rights system, where the doctrine of the “margin of appreciation” has developed in the jurisprudence of the
European Court of Human Rights. The doctrine recognizes the possibility of a number of acceptable alternatives in relation to the implementation of most rights. The margin of appreciation is an interpretational tool used to differentiate between what can properly be left to the state or community to decide and what is sufficiently fundamental that the same approach is required by all states irrespective of their differing traditions and cultures.
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The doctrine of margin of appreciation therefore embraces the protection of diversity and encourages inquiry beyond a single interpretation of human rights norms. If we apply the concept of margin of appreciation to gacaca, we are pushed to look not simply at whether gacaca provides a fair trial in the way that classical Western courts do, but to the more basic question of whether gacaca's structures provide a fair trial.

One major area of concern raised by critics of gacaca is the level of legal competence of gacaca judges, who are not legal professionals and receive only very limited legal training but are being asked to decide on complex legal questions. While there is validity to this concern for competence, there is no basis for assuming that the only way to achieve fairness is to conduct a trial before a highly trained judge. While gacaca judges may lack in legal training, they benefit from an intimate knowledge of the communities where they are conducting trials, what we might term “contextual competence”, as well as from being well‐respected members of the community. The immense popularity of the new form of gacaca courts appears to be due in part to a popular sense that gacaca judges will better understand the local communities, their
norms, and the events under consideration. This is not to suggest that technical competence is of no significance in Rwanda. Rwandans do recognize that a level of legal knowledge is necessary for the conduct of a fair trial, particularly in classical courts, and some of the negative popular attitudes toward regular Rwandan courts are due to the low level of competence of judicial personnel in these courts in the past.
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While there are legitimate concerns about the level of technical training of the gacaca judges, the gacaca process does provide some means to attempt to correct for the problem, such as a system of legal advisors to provide technical assistance. There is one member of the National Jurisdiction of Gacaca Courts assigned to each province in the country, and they oversee a group of legal experts (at least one per district) who are present during gacaca trials – though their numbers are insufficient to be present at every trial every time it meets.
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Gacaca judges received a short initial training, and they have received refresher courses regularly in the pause between their election and the beginning of most trials. Written booklets explaining the gacaca procedures and the relevant laws have been supplied to gacaca courts and are regularly consulted during the course of hearings. In addition, the most serious cases, and the only ones where the
death penalty can be ordered, are referred to the national courts. If the system works well, the combination of legal training, assistance, and contextual competence could be sufficient to guarantee the right to a competent tribunal. In the gacaca general assemblies that my researchers and I have observed, the inyangamugayo judges read aloud relevant rules of procedure before beginning various aspects of the process, and they referred frequently to the gacaca booklet for clarification. On occasion, the gacaca advisers spoke up to clarify a point, while on a few other
occasions, the inyangamugayo turned to the advisers for advice.

Concerns are also raised about the independence of gacaca courts, particularly because the judges will not be paid for their extensive service.
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The judges, the majority of whom are poor farmers, are expected to devote one day per week to the gacaca process, which means leaving their fields or their jobs for the day. Since most judges are poor, there are fears that they may be susceptible to bribery. Furthermore, given traditional deference to authority in Rwandan society, the mostly uneducated inyangamugayo may be unduly influenced by officials or other elite individuals. The official advisors in particular may have undue influence, and government officials may seek to use their influence to dominate proceedings.

Several factors help to protect the independence of the gacaca courts. First, in response to criticism, the original Organic Law was amended to
exclude political officials, civil servants, active soldiers, police, and magistrates, and political party leaders from serving as inyangamugayo judges. It was believed that such individuals could have undue influence on the process.
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Second, the sheer number of judges on each panel helps to make influencing them more difficult. As one informant told us, “They could bribe one or two or even five judges, but nineteen? That would take a lot of money!”
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This may be an overly optimistic assessment, but the number of judges does militate against an easy attempt to sway the court. Related to this, the sheer number of courts will make it difficult for any individual or group to influence the entire process. Erin Daly argues that, “The sheer number of tribunals operating simultaneously should protect the process as a whole from undue influence by the central government.”
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Third, because the judges live in the communities where the trials are being held and the trials are open to the public, the gacaca judges are more subject to community pressures as well as scrutiny than regular court judges. In fact, Rwanda's regular courts have not been subject to the same level of actual scrutiny, and have been widely and justifiably criticized for their lack of independence.
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Some witnesses have argued that the accessibility and transparency of the gacaca courts will make them
more
independent than regular courts.
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Furthermore, there are regulations built into the gacaca law to punish judges caught accepting bribes or otherwise succumbing to outside influences, and the panels of judges themselves can remove members for, among other causes, unethical behavior.
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The training for gacaca judges has placed significant emphasis on the need for judges to have high integrity and to set an example for the community through their honesty.
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