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Clark, Phil. The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice Without Lawyer.

Clark, Phil. The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice Without Lawyer. Cambridge: Cambridge University Press, 2010. 388 pp.

Derived from a Kinyarwand word meaning "grassy place," gacaca was a venue and traditional, informal means of conflict resolution on the village/hamlet level that involved respected elders and the open participation of local residents. The post-genocide Rwandan government transformed gacaca to deal with a national dilemma. After the 1994 genocide in which the majority Hutu killed somewhere between 700,000 and a million Tutsi, the government formed by the Tutsi-dominated Rwandan Patriotic Front arrested about 120,000 Hutu on suspicion of having been involved in the massacres. Lacking functioning courts, qualified judges and lawyers, the government held the prisoners without formal indictments for years in poor living conditions. Once new national courts began to operate, it became apparent that they could not handle the huge number of potential cases awaiting them. Consequently, the government decided to revive and restructure the traditional, local-level Rwandan judicial system of gacaca to meet the challenge of achieving justice.

In December 1996, Rwanda passed the Organic Law on the Organization of Prosecutions for Offenses Constituting the Crime of Genocide or Crimes against Humanity. This law created four levels of offenses:

Category 1 for planners, inciters, and leaders, and for particularly brutal or notorious killings, and acts of sexual torture;

Category 2 for authors and accomplices of homicides;

Category 3 for assault; and

Category 4 for offenses directed at property only.

Category 1 offenses originally were punishable by death (later Rwanda abolished capital punishment); Categories 2 and 3 by sentences of up to life imprisonment; and Category 4 by civil damages or nominal prison sentences.

Eventually the government created about 11,000 gacaca tribunals, composed of ordinary citizens, to operate in each of Rwanda's 12 prefectures, 145 communes, 1,531 sectors (secteurs), and 8,987 cells (cellules). The plan provided for some 170,000 citizens to sit as "judges" on these tribunals. A stated goal of the new gacaca system was to establish the truth about what happened, with the communities which were the eye witnesses to the crimes giving evidence about the crimes. In addition to fighting impunity by punishing those responsible for genocide and related crimes, the government hoped the gacaca system would promote national reconciliation and restorative justice by reintegrating the guilty back into society.

Originally, gacaca tribunals had jurisdiction over all Category 2, 3, and 4 offenses. All Category 1 cases (the most serious ones) were to be forwarded to the conventional prosecutors' offices at the Courts of First Instance. The cell gacaca tribunals were to try suspects accused of Category 4 crimes and pass the dossiers on more serious offenders up to the next level gacaca structure. The sector level gacaca would deal with Category 3 cases, and the commune level gacaca with Category 2 cases. At the cell level, the entire adult population constitutes the "council" that elects the cell level gacaca "court" and "coordination council." The gacaca court issues decisions, while the "coordination council" directs the court's activities. Ordinary citizens, as members of the "council," investigate all crime suspects in the community and formally classify offenders according to the categories set forth in the Organic Law. Decisions of the cell gacaca tribunals are not subject to appeal. Sector and commune level gacaca decisions may be appealed to the next-highest gacaca tribunal. In 2004, the Organic Law was revised such that categories two and three were merged, leaving only three crime categories. Another change in 2008 shifted a range of category one crimes to the gacaca courts. Countrywide gacaca hearings began officially in 2002; they are scheduled to terminate at the end of 2011.

Gacaca tribunals are vested with the power to summon persons to appear and testify, to issue warrants and conduct searches, to attach personal goods, and to impose fines and sentences in accordance with the Organic Law. Those who confess and plead guilty prior to trial are eligible for reductions in sentences. Those confessing to lesser crimes may opt to substitute community service for prison time.

The gacaca plan did not provide for a defendant's right to have a lawyer to protect his/her interests. However, the right of defendants to call upon a lawyer of their choice to protect their interests and to help defend them against charges is guaranteed under International Covenant on Civil and Political Rights Article 14(3) (b) and (d) and the African Charter Article 7(I). Rwanda has ratified both of these human rights conventions. The African Human Rights Commission has specifically addressed the necessity for procedural protections in the context of traditional justice mechanisms. In its Dakar Declaration of September 11, 1999, the Commission stated: "it is recognized that traditional [e.g., gacaca] courts are capable of playing a role in the achievement of peaceful societies and exercise authority over a significant proportion of the population of African countries. These courts, however, also have serious shortcomings, which result in many instances of the denial of a fair trial. Traditional courts are not exempt from the provisions of the African Charter relating to a fair trial." As a consequence, human rights groups, such as Amnesty International and Human Rights Watch, have been quite critical of the gacaca process. Clark spills a good deal of ink refuting the criticisms by these Western human rights organizations. He claims that he really understands the qualities of the process, and they do not.

The function of traditional gacaca was to restore social order and harmony in the community. A gacaca proceeding was not a permanent juridical or administrative institution but a meeting chaired by elders and convened when necessary. The elders guided the group discussion, which was designed to lead to an arrangement acceptable to all participants. The modern distinction between judges, parties, and witnesses was not relevant in traditional gacaca; because the issue affected all of the members of the society--they were all "parties" to the conflict. The traditional gacaca proceeding did not aim to determine guilt, but rather the purpose was to make the community whole. The disputes handled in traditional gacaca proceedings generally concerned land, marriage, inheritance, livestock, damage to property, and petty theft. Major conflicts, such as more serious offenses of theft and murder, were not dealt with by gacaca, but were put before the mwami (king). Even where the dispute was of a criminal nature, gacaca settlements would generally require compensation of some sort rather than prison sentences.

The government's new gacaca plan adopts some of the core values of the traditional gacaca proceedings; for example, it aims to increase community participation, and to promote reconciliation and harmony. Whereas traditional gacaca derived its authority from the common understanding of the community, the new plan is imposed by the State. Additionally, while traditional gacaca did not handle serious criminal matters and could not impose prison sentences, the new plan deals with genocide and potential life sentences. Decisions by the new gacaca tribunals are generally not based on traditional compromise; their penalties necessarily involve retributive punishment.

Each cell elected 19 judges who were deemed to be people of integrity, honesty and good conduct, as well as above suspicion of involvement in genocide or crimes against humanity. They were supposed to be free of sectarian and discriminatory attitudes, known for a spirit of encouraging dialogue, and literate in Kinyarwanda. Rather than using secret ballots, the elections were conducted by people lining up behind qualified candidates. Most judges turned out to be Hutu; there were some women among them. Those elected received several days of training and a manual to guide them in their judicial duties. The government prohibited lawyers from participating in any gacaca for fear that they would intimidate participants, formalize the process and create long, drawn-out trials.

Clark began researching gacaca for his doctoral thesis at the University of Oxford. Clark states that he conducted 356 interviews with Rwandans over 15 months of fieldwork between 2003 and 2010. He conducted the interviews personally in either English or French, or through an interpreter if the respondents spoke only Kinyarwanda. He reportedly also attended 67 gacaca hearings.

Clark lists a series of objectives of gacaca and attempts to evaluate each of them. They included clearing the backlog of genocide cases, truth-hearing and truth-speaking, achieving peace, retributive justice, healing, forgiveness, reconciliation and restorative justice. Clark concludes that the results varied by locality. Gacaca successfully reduced the case backlog by hearing thousands of cases. Clark reports that about 25% of them resulted in acquittals. Gacacas also delivered retributive justice and facilitated truth-telling and truth-hearing processes. It was too early to determine whether restorative justice, healing, forgiveness and reconciliation have or will be achieved. Only a minority of confessed killers expressed genuine remorse for their crimes. Many of the Rwandans Clark interviewed expressed doubt about achieving reconciliation and restorative justice.

There were negative sides to the process. Some accused genocidaires had organized themselves into "syndicates of liars" who colluded to hide evidence. Survivors were threatened not to testify, and some witnesses were killed. Tutsi were not the only victims in 1994. A number of confessed genocidaires had family killed by the RPF. The government's prohibition on trying any accused RPF men in gacaca angered Hutu.

In sum, Clark's book contains a great deal of information about the development and operation of gacaca. He includes the responses to gacaca-related questions of many of his Rwandan respondents. Hence, this book is valuable for anyone interested in Rwanda specifically and transitional justice generally. Stylistically, the book has some shortcomings. Parts read like a doctoral dissertation. It is excessively repetitive and contains too much scaffolding (i.e., telling the reader repeatedly what will be said and what was said, chapter after chapter). These criticisms aside, it is an impressive work of research and analysis.

Paul J. Magnarella

Warren Wilson College
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Author:Magnarella, Paul J.
Publication:Journal of Third World Studies
Article Type:Book review
Date:Mar 22, 2012
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