Commentators weigh in on gacaca

KIGALI — After ten years and almost two million cases, the Gacaca trials were officially brought to an end last week.

The Gacaca process has been criticized by some commentators, and defended by others.

Human Rights Watch (HRW), which observed more than 350 cases over a period of more than 2,000 days, has been one its most ardent critics.

Carina Tertsakian, a senior researcher at the organization, says their main criticism is the “violation of the right to a fair trial.”

Tertsakian, who spoke over the telephone from London, said international legal standards were not met during the trials. For example, the accused didn’t get defence lawyers, there were no prosecutors, and the judges had no formal legal training and an overall low level of education.

Furthermore, the organization cites numerous examples of corruption, such as judges and witnesses accepting bribery, various parties being put under pressure from outside influences, and defendants being unjustly accused for personal reasons, with very little evidence.

However, the critics have themselves been subject to criticism.

Dr. Phil Clark, a professor at the University of London, has been studying Gacaca since 2003, which has included attending more than 70 trials and interviewing over 600 people.

Dr. Clark, who was reached from the United Kingdom via Skype, says much of the criticism of Gacaca has been exaggerated.

“I think the problem with the critiques by groups like Human Rights Watch and Amnesty International is that they tend to knit pick very small or very limited problems and then claim that they’re representative of Gacaca as a whole,” he said.

“They basically wrote Gacaca off from day one, and believed it was going to become mob justice because it didn’t involve lawyers and it didn’t involve professional legal actors.”

To be fair, HRW has also had good things to say about Gacaca.

“We’ve also highlighted some of the positive aspects of Gacaca,” Tertsakian said. For example she praised the fact that the hearings managed to process such a massive amount of cases.

“It’s been a mixed picture, with some positive and some negative aspects,” she said. “It’s important to bear those things in mind alongside the criticisms that we’ve made.”

Clark also acknowledges that the trials have had their fair share of problems, but says that any massive, long-term process will always have flaws.

“The process of 11,000 courts over 10 years is definitely going to have problems. That is absolutely inevitable,” he said.

He said these problems were usually acknowledged and addressed.

“Communities would often find ways to address those problems. Corruption was there but it wasn’t as though the communities were blind to that problem. Many communities actually found mechanisms to deal with it.”

Minister of Justice Tharcisse Karugarama also defended the Gacaca courts.

“You can say with confidence that Gacaca courts have achieved their original objective, and we as Rwandans should all be grateful,” he said. “I see signs of reconciliation across the country. I see that people in the villages are coexisting peacefully.”

“The blanket accusations by some of the human rights organizations are unfortunate.” He said that even if some of the cases experienced corruption, this shouldn’t distract from the overall success.

Tertsakian said another major problem is that crimes committed by the Rwandan Patriotic Front (RPF) at this time were not tried in Gacaca courts.

She said “Tens of thousands of people were killed by the RPF during the period in question,” which was documented by HRW and the United Nations. She was quick to add that these crimes could not possibly be compared to the genocide, as they were on a much smaller scale.

Justice Minister Karugarama countered that these crimes weren’t tried by Gacaca because they weren’t crimes of genocide. He said that all RPF members who committed crimes during this period were brought to justice under military trials.

“It wasn’t one-sided justice that was given,” he said.

Professor Clark also said that in a small minority of cases, the government tried to influence decisions, but local participants protected the integrity of the process.

“Many Gacaca judges were very courageous in telling government officials to back off,” he said.

Overall, Clark is quite positive about the results of Gacaca.

“I think on balance, given the odds that Rwanda was faced with, we’d have to say that Gacaca was remarkably successful,” he said. “It’s delivered very comprehensive accountability for genocide crimes.”

Roelof Haveman is an expert on Gacaca from the International Development Law Organization. He acknowledges that the hearings don’t meet traditional Western legal standards, but suggests it may be inappropriate to judge the system by an external measure.

“The big question is whether you should assess Gacaca on the basis of criteria that have been developed for a different system,” he said. “It’s a system based on Rwandan culture, by Rwandans, for Rwandans.”

Haveman said the Western penal system is not perfect either. “We all take a classical penal system for granted because we’re used to it. We don’t think anymore about all of the flaws and failures.”

Tertsakian counters this argument.

“You can argue about different legal systems, and that’s fair enough [but] there are certain fundamental rights enshrined within international standards. Those are the principles which should form the bottom line.”

Haveman argues that regardless of international standards, one of the unique advantages of Gacaca is that the victims are not restricted in their testimonies to only talk about legal aspects. They have the opportunity to talk about their horrific experiences and express their feelings of grief, which can be very cathartic.

“The idea of Gacaca is that everybody speaks to each other. There’s dialogue between the victims, the perpetrators, and the community,” he said.

Clark agrees. “[Gacaca] has created a space where people could talk in much more personal and emotional terms about the past,” he said.

He also said Gacaca should be viewed not only as a legal process, but as a social and political one.

“I think in a system like Gacaca, the legal training is not what is most important.”

He said what’s important is how well a judge can mediate between various parties, and his or her ability to discern the truth. This is determined by the judge’s knowledge of their community, the local dynamics, and their understanding of the genocide.

The United Nations Development Programme also praised the Gacaca system, releasing a statement saying that Gacaca delivered its intended objectives.

The statement goes on to defend Gacaca against its critics.

“Far from being “mob” or “vigilante” justice, as many legal critics predicted, about 25% of Gacaca cases have resulted in acquittal. Many prison sentences have been converted into community service, thereby facilitating the reintegration of detainees into society.”

One thing that all consulted parties agreed upon was the difficulty of establishing a process of justice and reconciliation after such a destructive event as the genocide.

“To be fair I don’t think any government anywhere could have found a perfect way of dealing with this,” Tertsakian said. “It was always going to be extremely difficult.”

Perhaps more time needs to pass before a more comprehensive assessment of Gacaca can be made.

Haveman ponders the ultimate question: “Has justice been achieved? That’s the million dollar question.”

*  *  *

A version of this article was published by The Chronicles newspaper in Rwanda in hard copy and online, in June, 2012. It can be found online here.

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