#15 responsibility
Gerd Hankel

Prescribed Reconciliation – The Gacaca Courts in Rwanda

Anyone who travelled through Rwanda in the summer of 2002 could not miss the large posters in many places depicting scenes of violence and people clearly marked by great suffering. “Gacaca Court” was the heading over these reminders of the gruesome genocide and its consequences, and below it in smaller letters: “The truth brings healing. When we say what we have seen, when we confess what we have done, our wounds can heal.”

The posters were an important component of what in Rwanda was called a “sensitisation campaign” to increase the acceptance of a form of justice with long roots in Rwandan culture that increasingly lost significance beginning with the colonial age at the end of the 19th century. It is known as Gacaca (the letter “c” in the word “Gacaca” is pronounced like the “ch” in the English word church), a word from the Rwandan Kinyarwanda language which translates roughly as “lawn” or “meadow”. This is a clue to the form it takes: In traditional Gacaca, a case was argued in a public with community involvement.

The primary goal of a Gacaca negotiation was to re-establish social peace, and a ritual act was generally performed at the end of the process to affirm this.

The inhabitants of a village gathered together in an open space where, under the leadership of an inyangamugayo (the one who abhors dishonour) selected by the community, they settled community rule violations. The focus was not on assigning blame to a specific person, or his or her family or clan. The acknowledgement of wrongdoing by the accused or another member of his or her family, and the provision of compensation as needed, were more important. The primary goal of a Gacaca negotiation was to re-establish social peace, and a ritual act was generally performed at the end of the process to affirm this.

Reactivating Gacaca

The Gacaca courts charged with sentencing those involved in the genocide and other crimes in connection with it were active for exactly ten years to the day, from June 18, 2002 to June 18, 2012. The transition government formed in Rwanda in July 1994, just a few days after the genocide, looked to Gacaca because it allowed the state to turn the desperate situation in the numerous overflowing prisons and the resulting horrendous prison conditions into a political virtue. The government was seen as pursuing lasting reconciliation between the Tutsi and the Hutu peoples. Around two-thirds of the Tutsi were slaughtered during the genocide, mostly by Hutu offenders.

It would have taken the special chambers decades to hear every case. So it made sense to look to a different type of court.

Back in August 1996, special chambers were established in the regular statutory and military tribunals to deal exclusively with crimes of genocide and other misdeeds committed during the genocide. The chambers conducted around 10,000 proceedings during the time that followed, still too few to cope with the ever increasing number of remanded prisoners awaiting trial in the jails. In 1996, around 100,000 prisoners were under lock and key, and this number increased to around 130,000 by the end of the 1990s. At 1,500 proceedings per year, it would have taken the special chambers decades to hear every case. So it made sense to look to a different type of court, one that could be institutionalized in large enough numbers without excessive investment, one that offered the additional advantage of hearings outside the limited space of the courtroom and was open to a larger segment of the population for educational purposes.

Billboard advertising the Gacaca justice system as a means to come to terms with the crimes committed during the genocide

A pilot phase began in selected locations in 2002 and ended in 2004. Gacaca courts were then set up in almost all 10,000 cells and around 1,500 sectors of Rwanda. Local communities selected the judges, which included women for the first time in Gacaca history. Initially numbering 19, though later reduced to 7 to make deliberations easier, they functioned as the mouthpieces, coordinators and evaluators of everything the population had to say about the genocide and its perpetrators. Which court heard which case was based on the severity of the deed. Cell level courts were responsible for crimes against property, like property damage and looting. If the person stood accused of bodily harm, manslaughter or murder, the sector courts had jurisdiction. Starting in May 2008, most of the people who had abused their high social standing as members of the government, military or police forces to plan, organize or conduct the genocide also had to answer to these courts, as did those who stood accused of sexual torture or rape (an exception was made to allow cases regarding the last two acts to be heard in a courtroom away from the public eye). Gacaca appeals courts were also set up at the sector level, as Gacaca law allows a defendant to appeal any ruling.

The earlier an accused confessed and showed remorse, the greater the mitigation of the sentence could be.

To this point, the steps taken by the Rwandan government to reactivate the Gacaca were very similar to a normal criminal justice system, and the laws the Gacaca courts applied were also more or less the same as in the earlier special chambers. The sentences, the most potent weapon a court has at its disposal, the Gacaca courts could mete out were clearly designed to accommodate the traditional Gacaca approach though. These began with the punishment for crimes against property (looting, property damage), which were limited to payment of damages. Damages could be forgiven if the accused had attempted to redress the damage in an act of active repentance. They continued with a large sentencing catalogue – with imprisonment from anywhere between one year to lifelong – for offenses against persons. Anyone who confessed to their deeds and sincerely apologised to the local population stood a chance of a mitigated sentence. The earlier an accused confessed and showed remorse, the greater the mitigation of the sentence could be. So in the best case scenario, a murderer, even one accused of multiple murders, who confessed and demonstrated remorse before the Gacaca explored the concrete accusations could receive a sentence of “just” eight years imprisonment (two and a half years for accused who were minors at the time of the offense). Perpetrators who confessed also enjoyed generous probationary and alternative penalty terms. Even for murder, the law allowed for verdicts in which a convict only served one-sixth of his or her sentence in prison. One third of the sentence was suspended and for the remaining half, the convict performed community service, such as building houses for genocide survivors, repairing roads, cultivating fields and setting up irrigation systems.

Gacaca’s legacy

In the ten years in which they were active, around 13,000 Gacaca courts (including the appeals courts) dealt with almost two million cases of crimes that occurred between October 1, 1990, the start of the civil war, and December 31, 1994, the official end of the war. They reached around one million verdicts, most of which applied to male defendants (90 percent). The greatest number of proceedings by far (67 percent) involved looting and property damage, followed by murder, manslaughter or grievous bodily harm (29 percent) and proceedings in which the accusation was planning and organizing the genocide or inflicting sexual violence, such as through rape (4 percent). It is not known exactly how many accused were acquitted. Estimates place it at around 15 percent, though this varied according to the criminal charge.

Any victim or survivor who granted forgiveness contributed to the perpetrator’s reintegration into society and set the stage for peace.

Did Gacaca fulfil the hopes placed in it? Did it really function as a form of justice that allowed Rwandans to say that they contributed to “healing our wounds”? Any accused who confessed to his or her misdeeds, showed true remorse and asked for forgiveness, could hope to receive a lesser sentence and re-enter the community sooner. Any victim or survivor who granted forgiveness contributed to the perpetrator’s reintegration into society and set the stage for peace.

This happened many times.

Inmates awaiting their Gacaca trial

Despite the horrifying background of mass murder and destruction, perpetrators had the courage to confess to their misdeeds and ask for forgiveness. And the victims and survivors showed even greater courage in accepting these pleas and engaging with their aggressors despite knowing that they would have to live with them in one community again. In this sense, Gacaca was successful. Because of its traditional roots, it offered a socially acceptable framework for overcoming the deep gap rent between Hutu and Tutsi by war and genocide.

Although the wording of Gacaca law would have allowed for it, not a single proceeding was held to address the murder of a Hutu killed in revenge.

But this is just one facet of the Gacaca courts. The other is not nearly as glowing; quite the opposite in fact. It threatens to eclipse the positive side of Gacaca, casting a shadow so dark it could discredit the entire venture. To see and understand this shadow, we have to abandon the interpersonal level of perpetrator and victim and explore the political framework that created the conditions under which Gacaca proceedings took place. This framework can be generally characterized by three elements:

The first applies to the general perception of the perpetrator-victim dichotomy. There can be no doubt that the victims of the genocide were Tutsi and the perpetrators Hutu. Equally, though, there can be no doubt that many Hutu, and by no means just the perpetrators, were killed by soldiers from the liberation army during the war and during the genocide (estimates fluctuate between 30,000 and 50,000). While this number may seem small compared to the hundreds of thousands of genocide victims (at least 500,000), it is large enough to generate the desire to have these victims recognized as well. Aside from very deferential proceedings carried out by the military courts against members of the liberation army, the Gacaca courts in no way attempted to fulfil this desire for acknowledgement. Although the wording of Gacaca law would have allowed for it, not a single proceeding was held to address the murder of a Hutu – an omission that weighs even more heavily if we consider the turbulent Hutu-Tutsi relationship over the course of history and the necessity of living together in one country that with around 26,000 square kilometres numbers is among the smallest and most densely populated in Africa.

The second element addresses the narrative that grew up around this omission. It was consolidated by two wars Rwanda conducted in 1996 and between 1998 and 2002/3 on Democratic Republic of Congo soil and during which tens of thousands, and probably hundreds of thousands, of Rwandan Hutu refugees were killed. The fact that no one from the Rwandan Army or government was forced to take responsibility for these killings, and the fact that even mentioning them became a punishable taboo, turned the Gacaca courts into sweeping and final courts of victory for most Rwandans, even though given the time frame, they had no jurisdiction over these crimes.

Billboard explaining the benefit of community service done by prisoners

Which brings us to the third element, which might be entitled the “culture of obedience”. This is more of an ‘unculture’ that played a fateful role during the genocide when the orders to kill were carried out without complaint. This “culture of obedience” could have been broken open and revealed to all Rwandans in its full fallibility. Instead the same process was repeated over and over again: Court proceedings during which the overriding truth is set from the outset in front of an increasingly disinterested audience required to attend, backed by witnesses who could be intimidated, often with practically no defence for the accused, verdicts with a reputation for despotism that were therefore not made available to the convicted. In short no real attempt to achieve justice, but a mere performance of same. And fatally this performance shaped the whole assessment of the Gacaca courts, although there were plenty of proceedings in which the layperson judges (more than a third of whom were women) tried very hard to provide both victim and perpetrator with justice. A justice system that condones influence and arbitrariness does considerable damage to itself in the end.

On the other hand, though, the Rwandan government has appropriated history, and its evaluation and treatment.

Critiques of the Gacaca courts, especially from abroad, are often countered from the Rwandan side with the argument that Gacaca is a typical Rwandan institution that stands for the Rwandans’ ability to solve their problems themselves. Historically, though, Gacaca did not deal with the sorts of violent crimes committed innumerable times during war and genocide. If the Gacaca courts had wanted to make a contribution to constructive conflict resolution in this sense, they would have had to endeavour to maintain their historically characterised credibility and social acceptance. Whether this was successful is questionable based on the reasons presented above. The crimes of genocide that fell within the Gacaca purview are certainly viewed as rectified. Peace reigns in Rwanda, as does an economic situation that is the envy of its neighbours. These are all important factors that can be chalked up to the government. On the other hand, though, the Rwandan government has appropriated history, and its evaluation and treatment. As long as the individual feels represented, this is completely unproblematic. It becomes a problem, though, when individual experience and hope, and government policy move in opposite directions. While the state with its power monopoly can contain (at least for a while) the critical voices and protests that inevitably arise, the internal peace it prides itself on ultimately stands on clay feet.

Photos: Gerd Hankel

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