NATIONAL UNIVERSITY OF RWANDA
CENTER FOR CONFLICT MANAGEMENT (CCM)
EVALUATION OF GACACA
PROCESS: ACHIEVED RESULTS
PER OBJECTIVE
Study Commissioned by National Service of Gacaca Courts
NATIONAL UNIVERSITY OF RWANDA
CENTER FOR CONFLICT MANAGEMENT (CCM)
EVALUATION OF GACACA PROCESS:
ACHIEVED RESULTS PER OBJECTIVE
Supervised by
Prof. Paul RUTAYISIRE (CCM)
© 2012, National Service of Gacaca Courts - National university
of Rwanda (NUR)
TABLE OF CONTENTS
PREFACE....................................................................................................10
I. Introduction.............................................................................................14
I.1 Need for transitional justice and mandate assigned to Gacaca Courts....14
1.2. Notion of Transitional Justice................................................................14
1.3. Experiences from elsewhere on establishment of a transitional justice system after mass crimes..........................................................................16
1.3.1. Experience of transitional justice in some Latin American States......16
1.3.1.1. The Guatemala.....................................................................17
1. 3.1.2. Argentina ............................................................................18
1.3.1.3. Chile.....................................................................................20
1.3.2. Experience of transitional justice in the African context....................21
1.3.2.1. South Africa...........................................................................21
1.3.2.2. Sierra Leone..........................................................................23
1.4. Need for transitional justice in Rwanda.................................................26
1.4.1. Evidence of the culture of impunity in Rwanda..........................27
1.4.2. Choosing the Gacaca process as a mechanism for the management
of Genocide litigation............................................................................29
1.4.2.1. General post-genocide context and rationale for selection of
Gacaca Courts................................................................................29
1.4.2.2. Weight of genocide litigation and risk of impunity...........32
1.4.2.3. Legal framework of the fight against impunity in relation to
genocide.........................................................................................35
1.5. Brief overview of the scientific literature on the Gacaca courts............37
1.6. Review of objectives and expected results from Gacaca Process
evaluation.................................................................................................40
1
CHAPTER I: METHODOLOGICAL APPROACH...............................42
1.1. Introduction............................................................................................42
1.2. Choice of the processual approach as a method of investigation..........43
1.3. Choice of the observational variables and their translation into empirical
indicators.......................................................................................................44
1.4. Sampling of the Gacaca courts, interviewees and trials analyzed.........51
1.4.1. Sampling of Gacaca courts engaged during the evaluation.........51
1.4.2. Sampling of interviewees within each sector..............................53
CHAPTER II: CONTRIBUTION OF GACACA PROCESS IN
REVELATION OF THE TRUTH ABOUT THE CRIMES COMMITTED
DURING THE GENOCIDE......................................................................59
2.1. Introduction............................................................................................59
2.2. Meaning of the concept of truth under this research............................59
2.3. Problem of access to the truth after genocide........................................60
2.4. Contribution of the Gacaca process in identifying criminals ................61
2.4.1. Legal framework for categorizing the perpetrators
of genocide. .........................................................................................62
2.4.2. Impact of the Gacaca process in identifying planners and
organizers of the genocide at national level..........................................64
2.4.3. Contribution of the Gacaca process in identifying field
organizers..............................................................................................66
2.4.4. Contribution of the Gacaca process in identifying the performers
genocide................................................................................................69
2.5. Contribution of the Gacaca process in identifying victims
of genocide....................................................................................................73
2.5.1. Contribution of Gacaca process in identification of victims killed
within their Cells of origin....................................................................74
2.5.2. Contribution of the Gacaca process in the identification of victims killed
outside their cells of origin....................................................................75
2
2.5.3. Contribution of the Gacaca process in the identification of victims
killed on barriers ...................................................................................76
2.5.4. Contribution of the Gacaca process in the identification of victims
killed due their refusal to participate in genocide.................................78
2.6. Contribution of the Gacaca process in identification of massacre sites
and where the victims’ bodies were dumped................................................79
2.7. Contribution of the Gacaca process in identifying the “righteous”.......82
2.9. Partial conclusion ...............................................................................85
CHAPTER III THE CONTRIBUTION OF GACACA COURTS TO
THE SPEEDING UP OF GENOCIDE TRIALS.....................................86
3.1. Introduction ...........................................................................................86
3.2. The procedure and practical techniques used to speed up the trials .....87
3.2.1. Collaboration of various stakeholders in the preparation of
Genocide case files ...............................................................................90
3.2.2. The role of confessions, guilty pleas, repentance and seeking for
forgiveness in the acceleration of trials ................................................91
3.3. The different phases of implementing the Gacaca process and their
impact on speeding up trials ........................................................................94
3.3.1 Activities and lessons of the pilot phase ......................................94
3.3.2. Positive impact of nationwide data collection on speeding up
trials ......................................................................................................96
3.3.3. The effects of data validation on speeding up of genocide
trials.......................................................................................................98
3.3.4. Strengthening of the legal framework led to speeding
up of trials.............................................................................................99
3.3.5. Collection of additional information on the sites
of massacres....................................................................................102
3.4. Procedural measures that helped to speed up trials during
the trial stage...................................................................................104
3.4.1 Handbook for conducting trials..................................................104
3.4.2. Criteria for processing cases.....................................................104
3
3.5. Acceleration of judgments balanced against the requirement of the right to a fair trial ...................................................................................110
3.6. Obstacles encountered in trying to speed up trials and solutions.........112
3.7. Partial conclusion ..............................................................................114
CHAPITRE IV: CONTRIBUTION OF GACACA COURTS IN THE
FIGHT AGAINST IMPUNITY .............................................................115
4.1.Introduction ..........................................................................................115
4.2. Impartiality and independence of Gacaca courts.................................115
4.2.1. Characteristics, manifestations of independence and impartiality of
Inyangamugayo judges ..............................................................................116
4.2.1.1. Conditions for voting, election and replacement of
Inyangamugayo judges........................................................................117
4.2.1.2. Training of Inyangamugayo judges........................................118
4.2.1.3. Independence of Inyangamugayo judges...............................123
4.2.2 Impartiality and independence of Inyangamugayo judges
in their work....................................................................................126
4.3. The respect of the right to defence.......................................................128
4.3.1. The right to legal defence by advocate of one’s choice within the
framework of the Gacaca process.......................................................128
4.3.2. Equality of defence and prosecution before the courts and
observance of the principle of debate..................................................130
4.4. Observance of the principle of presumption of innocence..................132
4.5. Observance of the right to a substantiated judicial decisions .............135
4.6. Summons and trial of people in high places .......................................136
4.7. Execution of the judgments rendered by Gacaca courts .....................137
4.8. Compensation of property....................................................................138
4.9. Difficulties encountered in the fight against impunity.........................141
4.10. Partial conclusion ............................................................................145
4
CHAPTER V: THE CONTRIBUTION OF THE GACACA PROCESS
TO NATIONAL RECONCILIATION....................................................146
5.1. Introduction .........................................................................................146
5.2. The definition of the reconciliation process in this research ...............146
5.3. The challenge of reconciliation in a post genocide context ................148
5.4. Contribution of the Gacaca process to national reconciliation............149
5.4.1. Positive changes induced by the Gacaca process with regards
to relations between the families of survivors and those convicted of
genocide crimes ..................................................................................149
5.4.2. Benefit of confessions and the guilty plea in reconciliation .....153
5.4.3. Contribution of the request for forgiveness to consolidating the
process of reconciliation......................................................................155
5.5. Factors that limited the impact of the Gacaca process in the promotion
of post genocide reconciliation ..................................................................159
5.6. Partial conclusion ............................................................................160
CHAPITER VI: THE GACACA PROCESS: AN ILLUSTRATION OF
THE CAPACITY OF RWANDANS TO RESOLVE THEIR OWN PROB
LEMS.........................................................................................................162
6.1. Introduction..........................................................................................162
6.2. The complexity of genocide trials.......................................................162
6.3. Evolution of the attitudes of survivors, suspects and members of the
international community regarding the Gacaca process.............................166
6.4. Gacaca courts in Rwanda as a solution for the management of genocide c
ases.........................................................................................................169
6.4.1. The Gacaca process as an adequate political decision for the trial
of genocide cases.................................................................................169
6.4.2. The Gacaca process as Rwandan cultural value .......................171
6.4.3. Originality of the mechanism put in place to guide the investigation
of cases and conducting of trials.........................................................171
5
6.4.4. Coordination mechanisms that facilitated the success of the Gacaca
process ................................................................................................176
6.4.5. Role of « Inyangamugayo » Judges..........................................177
6.4.6. Collaboration of various institutions.........................................178
6.4.7. Involvement of the local population in the Gacaca process.....179
6.4.8. Ability of Rwandans to overcome the consequences
of the genocide....................................................................................180
6.5. Partial conclusion..............................................................................181
GENERAL CONCLUSION.....................................................................182
RECOMMENDATIONS .........................................................................187
BIBLIOGRAPHY.....................................................................................188
6
ABBREVIATIONS
• Art.: Article
• RPF : Rwanda Patriotic Front
• ASF: Avocats Sans Frontière
• BTC: Belgian Technical Cooperation
• D.L: Decree – Law
• HRW: Human Rights Watch
• ICG: International Crisis Group
• ICTR: International Criminal Tribunal for Rwanda
• IRC: International Rescue Committee
• LIPRODHOR: Ligue Rwandaise pour la Promotion et la Défense des
Droits de l’Homme
• MDR : Mouvement Démocratique Républicain
• MINALOC: Ministry of Local Government
• MRND: Mouvement Révolutionaire National pour le Dévelopement
• MTN: Mobile Telecommunication Network
• NCHR: National Commission of Human Rights
• NSGC: National Service of Gacaca Courts
• NUR: National University of Rwanda
• O.G.R.R: Official Gazette of the Republic of Rwanda
• PAPG: Projet d’Appui de la société civile au Processus Gacaca
• PRI: Penal Reform International
• RCS: Rwanda Correctional Service
• RTLM: Radio Télévision Libre des Milles Collines
• SFB: School of Finance and Banking
• TIG: Travaux d’Intérêt Général
• UNAMIR : United Nation Mission in Rwanda
• U.N: United Nations
7
List of Tables
Nº1: Selected evaluation indicators with regard to access to the truth.....44
No2: Observation indicators for the second objective of the Gacaca process: Speeding of trials ...............................................................47
N°3: Selected evaluation Indicators regarding the second objective of the Gacaca process, namely the fight against impunity..........................48
N°4: Indicators assessing the fourth goal of the Gacaca: promotion of
reconciliation ...................................................................................49
N°5: Demonstration of the contribution of people in finding solutions to
litigation of genocide .......................................................................50
N°6: Sample of individuals interviewed in the City of Kigali .................54
N°7: Sample of individuals interviewed in the Southern Province .........55
N°8: Sample of individuals interviewed in the Western Province ...........55
N°9: Sample of respondents in the Northern Province .............................56
N°10: Sample of respondents in the Eastern Province ...............................57
N°11: Number of confessions 2001-2002 ..................................................93
N°12: Number of detainees per Province, who chose the confessions procedure..........................................................................................93
N°13: Number of cases of the second and third category judged during the period from 15/07/2006 to 15/06/2009...........................................106
N°14: Duration of trials at the first level...................................................107
N°15: Duration of sessions at the appeal level..........................................108
N°16: Training for the Gacaca process.....................................................120
N°17: Geographical distribution of training on the Gacaca process.........121
8
List of Diagrams
N°1. Access to the truth of planners and organizers at.............................64
N°2: Access to the truth about the listing of the people to
be exterminated.................................................................................66
N°3: Access to the truth on those who distributed weapons ....................67
N°4: Access to the truth on those who gave orders .................................68
N°5 : Contribution of Gacaca process in identification of persons who committed crimes on roadblocks......................................................70
Nº6: Contribution of the Gacaca process in identification of the genocide perpetrators at cell level....................................................................71
Nº7: Access to the truth about those who committed genocide
in other cells......................................................................................72
N º8: Contribution of Gacaca process in identifying victims.....................74
Nº9: Revealing the truth about genocide victims killed in other cells......75
Nº10: Identification of victims killed on roadblocks..................................77
Nº11: Revealing the truth about the victims who refused to participate in
the genocide......................................................................................78
N°12: Revealing the truth about the identification of sites of massacres...79
N°13: Revelation of the truth about places where victims’ bodies were thrown ..............................................................................................80
N°14: The way in which the victims were killed........................................81
N°15: Revealing the truth about “the righteous”........................................82
N°16: Highlighting of hiding places...........................................................84
Nº17: Number of sessions of completed cases ........................................108
Nº18: Number of sessions of appeal cases................................................109
N°19: Positive changes in relations...........................................................150
N°20: Impact of requesting for forgiveness .............................................154
N°21: Information on specific cases of forgiveness..................................156
N°22: Contribution of forgiveness to national reconciliation...................158
9
PREFACE
The genocide against the Tutsi in Rwanda was unique in nature due to the
enthusiastic participation of thousands of ordinary citizens. It is considered
to have been genocide of proximity in the sense that the victims were
killed, betrayed and denounced by their own neighbours, spouses and even
parents. This resulted in an atmosphere of general impunity where guilt was
viewed as collective over a large proportion of the population, tending to
exonerate the perpetrators from individual responsibility. Since this tragedy
was unprecedented in the history of Rwanda, we had to conceive an original
solution to manage the trials for mass crimes committed on such a scale. This
was done to prevent perpetual impunity which was one of the causes of the
atrocities and to avoid an attitude of “forgive and forget” for fear of dealing
with the sheer magnitude of the genocide.
The Gacaca courts overcame the trap set by the genocide perpetrators by
facing up to the challenge of trying the genocide cases and providing justice
to the victims and suspects within reasonable time. In so doing, they were
able to establish individual responsibility of thousands of suspects without
yielding to the temptation to bring symbolic persons to justice to make an
example of them or give a lesson to future generations as it was done in
Nuremberg after the fall of Nazi Germany.
This initiative was like a leap in the dark since there were many uncertainties
to overcome and parties involved in the post-genocide justice system did
not unanimously accept it. Many influential members of the international
community, more particularly human rights activists did not understand
how the trial of cases before which the ordinary courts had been rendered
powerless could be entrusted to Inyangamugayo judges who did not even
know the basic principles of traditional law.
Their point of view was understandable considering the fact that their mind
set was based on the western model of justice, which had already proven to be
inadequate in trying thousands of suspects. However, these strategic partners
10
of the Rwandan government could not provide any alternatives since foreign
legal systems or experiences were not applicable to the Rwandan context.
For their part, the genocide survivors were sceptical about the relevance and
effectiveness of such a legal system that was primarily based on input from
members of the local community. This is because they assumed that the judges
might be more inclined to exonerate their family members than to provide
justice for the few survivors who escaped the killings.
In addition, the individuals suspected of having participated in the genocide
did not believe that a voluntary confession of their crimes would ensure
reduction of their sentences. They interpreted this process as a ploy by
the government to make them confess the truth and expose themselves to
revenge. This negative attitude was reinforced by the anti-Gacaca campaigns
orchestrated by the networks created by members of the former regime that
was responsible for the genocide.
With only a few exceptions, most of the reluctance that was initially expressed
decreased over time due to the easy access to Gacaca sessions as well as the
flexibility demonstrated by the National Service of Gacaca Courts in providing
regular reports on the progress of the process and in taking into account the
opinions and comments expressed by relevant parties and stakeholders in
the correction of errors or deficiencies that were encountered. By the end of
this process the vast majority of these stakeholders believed that the Gacaca
courts were a credible option for gathering information about what happened
and for providing justice to both the victims and the perpetrators.
The contribution of the Gacaca process to the Rwandan community was
enormous. Below are some of the major contributions....
1) The Gacaca process demonstrated that this most heinous crime is now
fully punishable regardless of the number of participants or the scale of
the killings and destruction committed. It is possible to bring thousands
of suspects to justice within a reasonable time without interfering with
application of the law.
11
2) The strength and legitimacy of the Gacaca courts does not originate from
a foreign model of justice that was applied elsewhere but rather in the
local traditional values of justice in which condemnation of the guilty is
followed by initiatives aimed at their social reintegration.
3) The Gacaca courts operated in a decentralized approach from the gathering
of information to the conduction of trials. The population did not play a
passive role as they do in ordinary courts where cases are only argued
between the public prosecutors, judges and lawyers. In the Gacaca courts,
members of the local community were involved in the process. They had
the right to choose to be prosecution or defence witnesses or to simply ask
questions so as to improve the debate, open new lines of investigation and
supplement the information already gathered.
4) The Gacaca process had the advantage of conducting the trials of the
suspects at the locations where the crimes were committed. In this regard,
the involvement of all residents in the gathering of information and in the
trial proceedings had a very significant healing effect since each individual
was able to face the reality of the genocide as well as their own experiences
during this critical period of the nation’s history. The people now know
who did what: who chose to join the killers, who demonstrated the most
zeal in the atrocities, who saved lives that were in danger despite the risks
that were involved in doing so and who chose to do nothing. Ultimately,
the Gacaca courts laid the foundation on which post-genocide generations
may be base on to build a collective memory.
5) Most of the work accomplished by the Gacaca Courts was done by the
Inyangamugayo judges. They were in charge of gathering information
on crimes committed, compiling them into case files and conducting the
trials. They closed over one million cases in record time while ensuring
compliance with the law governing the Gacaca process. Inyangamugayo
judges got together to master the law and serve fair and prompt justice
while seeking advice from legal experts of the NSGC whenever they
encountered cases that were difficult to interpret. Furthermore, when it
became clear that the number of trials remaining could not be completed
12
according to the initial schedule, these judges took the initiative to increase
their number of working days. This gesture is even more impressive
considering that they were working under difficult conditions, without pay
and often threatened or marginalized by the families of the convicted. This
support to the Gacaca process from the foundation level was a determining
factor and was rooted in Rwandan culture which considers local conflicts
to be more of an affair between the local people than an issue for resolution
by government institutions.
At the end of the genocide, many foreign observers believed that restoration
of the Rwandan social fabric was almost impossible, and some even went so
far as to suggest the geographical separation of Tutsis and Hutus. The Gacaca
process was a refutation to these prophecies of doom, because it illustrated
the capacity of the Rwandan people to overcome their pain and participate in
finding solutions to the critical problems facing society. However, as successful
as the process was, we still cannot claim that all genocide-related crimes have
been identified and punished. Sensitization of those who still hold information
should continue so that these crimes are tried by the authorized courts.
Finally, it is hoped that the experience and skills gained during the Gacaca
process shall continue to be utilized to manage conflicts within the Rwandan
community.
Done at Kigali, on the 2nd June 2012
Domitilla MUKANTAGANZWA
Executive Secretary
National Service of Gacaca Courts
(se)
13
EVALUATION OF GACACA PROCESS: ACHIEVED RESULTS PER
OBJECTIVE
I. INTRODUCTION
I.1 Need for transitional justice and mandate assigned to Gacaca Courts
After every massive violations of human rights, whether genocide, war crimes
or crimes against humanity, the traditional criminal standard is not always
suitable for the settlement of collateral situations. In such situations therefore,
one is compelled to devise new forms of justice approaches that can best
solve the consequences of such tragedies.
In fact, if one would stick to the only purely technical point of view, the
magnitude of the atrocities committed, the number of victims and that of the
suspects, all would render it difficult for both data and evidence collection.
This therefore becomes a cumbersome task for any judicial system and so, it
is often found weakened by the crisis suffered.
Even though countries that have suffered such horrors are characterized
by a strong need for truth and justice, they are simultaneously faced with
enormous challenges to render such justice; given the lack of both human and
material means. Thus, many obstacles stand as hindrances to that process, yet
the need to assume a painful past in order to proceed with the construction of
a common future is paramount.
1.2. Notion of Transitional Justice
Due to such limits of traditional formal justice system, some countries have
devised new forms of jurisdictions whose concept would fit well into the
context of political transformation. This involves procedures based on a vision
that is based on the principles of democracy, justice and lasting peace.
14
Transitional justice may be administered in different ways. The latter
range from para-political formulas such as the ones offered by the SABATO
commission in Argentina1, quasi-judicial structures of which the model is
that of South Africa, through to that of commissions of historians like those
known in Switzerland2.
They can be limited to fact finding by assessing the number of victims, for
example, take a public or confidential form, or meddling in prosecutions
by allowing links between cause and received revelations and possible
indictments. They may also substitute for justice and block any prosecution for
persons who have testified. Nevertheless, all converge on a common concern
beyond the strict legal sense, avoiding the model that is strictly criminal3.
The term’’ transitional justice’’ means all policies and measures aimed to
restore peace and the rule of law in a country that has experienced a situation
of armed conflict or an authoritarian government. The transitional justice
process aims to tackle the legacy of conflict, to face the legacy of serious
abuses in order to establish a sense of global justice for all citizens, to prevent
a recurrence of conflicts, to avoid impunity, to regain public confidence and
to support national reconciliation.
It is founded on a broad vision of justice by establishing a meeting point
between judicial and extrajudicial facts, to try to meet the main requirements
like the right to truth, justice, reparation and guarantees the non-recurrence.
Transitional justice is usually divided into four legal instruments including
survey (like truth and reconciliation commissions), the trial, reparation and
institutional reforms. It involves active participation of all local stakeholders
1
Laura Tedesco et Jonathan Barton, The State of Democracy in Latin America: Post-Transitional Conflicts in Argentina and Chile, Routledge, New-York, 2005. Pierre Hazan,
Juger la guerre juger l’Histoire. Du bon usage des commissions Vérité et de la justice
internationale, Paris, PUF, Broché, 2007.
2
Created in 1996by the Suiss Parliament to examine the role of Switzerland during the
Second World War, the commission said BERGIERwas copmosed of nine hiostotian
members from several coun tries. It issued its report on March 22, 2002 in twenty-five
volumes.
3
Priscilla Hayner, « Fifteen truth commissions 1974 to 1994, a comparative study », Human Rights Quaterly, 16, 1994.
15
during consultations or public hearings. Moreover, it takes into account the
specific local and traditional mechanisms of regulation.
In some instances during the implementation of this particular justice system,
acknowledgement of committed crime which in itself is a step in the
application of justice, may be performed outside the trial, for example, by
making public statements. To highlight the specificities of the Gacaca process
as a transitional justice system, we will first briefly review the experiences of
countries that have experienced significant mass crimes and where the culture
of impunity had been persistently installed.
1.3. Experiences from elsewhere on establishment of a transitional justice
system after mass crimes
Under this heading, we discuss the experiences of Latin American countries
like Argentina, Chile and Guatemala, as well as those from African countries
including South Africa and Sierra Leone. We will then specify the context
that governed the selection of the Gacaca process to handle genocide cases
in Rwanda.
1.3.1. Experience of transitional justice in some Latin American States
Transitional justice was initiated early in the second half of the 80ies in some of
Latin American countries which have long lived off the yoke of dictatorships
or authoritarian regimes4. During those years, in fact, most South American
states had begun to borrow one by one from a path of transition to democracy
after years of bloody military dictatorships. The new governments had to take
difficult decisions to ensure democratic governance, fighting against violations
of human rights committed during the years of lead. It should however be
noted that in most cases, serious crimes were solved by massive amnesties
granted to perpetrators of those crimes.
For those countries that did not experience open dictatorship, they suffered
from decades of serious human rights violations and wanted to free themselves
4
Guatemala, Argentina, Chile,…
16
to find the path to democracy5. In both cases, the direct victims of such
violations, such as their families sought to know the whole truth, wished to
see the perpetrators punished and expected to receive both moral and material
compensation.
1.3.1.1. The Guatemala
In Guatemala, it was established a Commission of Historical Clarification
which identified 626 civilian massacres carried out mostly between 1978 and
1984 by armed forces or paramilitaries. These claimed around 200,000 dead
or missing, one million displaced inside the country and 400,000 abroad. The
Catholic Church established a Committee for Reconstruction of Historical
Memory, a Project referred to as REHMI. It gathered 5180 testimonies on
6146 facts and on the death of 25,123 victims.
The report found out that compared to the guerrilla, 90% of the massacres had
been carried out by the army. The REHMI project therefore recommended to
the State to recognize its responsibilities and make arrangements to compensate
and assist the victims and survivors, promote the collective memory by new
monuments and ceremonies to initiate demobilization and transformation of
the army, reform justice and end impunity of perpetrators. Peace agreements
were concluded in 1996, which excluded amnesty for imprescriptible crimes
like genocide, torture or disappearances. Through this committee, the work
on clarification of the historical reality for the years of lead was completed,
and public statements of recognition of responsibility were made6.
Note that it was criticized for these acts of public contrition of Guatemala,
to create confusion between two registers which ought to have been distinct;
namely that of morality and of politics, and that it did not really render
justice by establishing the individual criminal responsibility. Critics of these
5
«Transitional justice and sanctions» International Review of the Red Cross, Vol. 90, N°
870, pp. 371-398.
6
Guatemala, Argentine, Chili,
17
mechanisms supported the idea that public recognition was the opposite of
the charge and the nature of public and official guilty plea policy prohibited
any idea of ​​personal and private guilt. As for their defenders, they argued that
public recognition is already an antidote to totalitarianism and that to admit a
transgression of the law is to end any totalitarian power, thereby making for
a reconstructive justice7.
1. 3.1.2. Argentina
In Argentina, the military regime from 1976 to 1982 imposed an ultra nationalist,
fascist system, after eliminating by killings or disappearances the representatives
of the leftist and democratic organizations8. Subjected to international pressure,
but mostly confronted with economic difficulties that it was unable to resolve,
the military regime sought to mobilize public opinion on a national cause
namely, the recovery of the Falkland Islands under British rule.9
After being severely defeated, politicians that had led to the conflict lost
all the credibility. Differences appeared within the armed forces who found
themselves forced to return the power to civilians. The successive democratic
governments then attempted to limit the role of the armed forces to better
establish democratic structures, while avoiding a direct confrontation. In
1985, there was a trial of the junta, which ended in the conviction of its
leading members. However, over the two years that followed, the laws that
were referred to as the ‘’end point’’ in 1986 and the ‘’due obedience” in 1987
guaranteed the impunity for executors and middle men.
7
Antoine Garapon, Des crimes qu’on ne peut ni punir ni pardonner, Paris, Odile Jacob,
2002, pp. 219-220.
8
Mlore detailed information on tranisitional justice in Latin America States is available in
a book called «The instruments of the rule of law in societies emerging from conflict
- Truth Commissions», Haut-commissariat des Nations Unies aux Droits de l’Homme,
2006 : http://www.ohchr.org/english/about/publications/docs/ruleoflaw-TruthCommissions_fr.pdf. Voir également « La vérité, la justice et le deuil dans l’espace public et dans
la subjectivité », Rapport sur la situation des droits de l’homme en Argentine, chap. XII,
Centre d’Etudes Légales et Sociales (CELS), Buenos Aires, 2000.
9
Antoine Garapon, Des crimes qu’on ne peut ni punir ni pardonner, Paris, Odile Jacob,
2002, pp. 219-220.
18
The Argentine authorities that had come to power as the army, though
weakened, still represented a serious threat to endeavor to consolidate the
new regime. Argentina then focused on the convictions and punishments
but by limiting themselves however, to the principal authors of crimes. By
adopting a system that guaranteed impunity of thousands of middle agents by
revocable laws, Argentina wanted to preserve the future. Indeed, in August
2003 Parliament repealed the laws of said end point, and due Obedience
and in June 2005, the Supreme Court declared unconstitutional the amnesty
laws that had guaranteed impunity to one thousand soldiers guilty of serious
violations of human rights during the dictatorship period.
It should be noted however, courts that had been seized by victims to convict
the perpetrators and redress the injustices suffered, would again face, to an
extent certainly much less virulent, with a reaction of people questioned.
Thus a law of omerta would be imposed on prisoners involved in cases of
massive violations by their accomplices and witnesses and accusers would be
seriously threatened. In September 2006, a former detainee from Jorge Julio
Lopez’s junta camp disappeared following the testimony he had given before
the Court of La Plata. Most likely, he was assassinated at the instigation of
those called into question by his testimony.
The opening of action by hundreds of victims clashed with the threats posed to
them by the ancient authors. Despite these serious difficulties truth was later
to be known to the public in Argentina. The victims were - at least partially
- compensated and the main perpetrators tried and punished. However, the
democratic regimes that succeeded one another were unable to prevent the
influence of the intermediate cadres of the dictatorship period. The latter
instead succeeded, at least for some of them, to strengthen their position
within the structures of the state, thanks to the laws that protected them until
recently. The current phase where casualties are opening actions against these
authors reveals, on the one hand, the dissatisfaction with impunity and on the
other, shows the limits of a system that proceeds in stages.
19
1.3.1.3. Chile
In Chile, General Pinochet’s regime that was established after the coup of
1973 had, under international pressure and public opinion, to transform
itself gradually to allow more independence to courts and accept more open
elections10. He took great care to ensure as much as he could, the impunity
of his leaders and he restricted the scope of the opposition. In 1978, a selfamnesty law protected the perpetrators of the coup d’Etat and those responsible
for abuses of that period from any future prosecution. In 1985, an agreement
between the junta led by General Pinochet and some of the tolerated parties
was concluded to build a more democratic country.
The 1980 constitution allowed a certain but limited democratic and electoral
play that mostly guaranteed control of the process by General Pinochet
and other members of his regime. It is within this framework that the 1988
plebiscite took place, that ended the presidential term of Pinochet in 1991,
and a Truth and Reconciliation Commission charged with determining the
death toll that occurred between 1973 and 1990 was set up. Its mandate was
to identify 3197 cases, a figure that was very likely inferior to the magnitude
of repression.
In 1994, the Reparation and Reconciliation Commission decided that
compensation would be paid to 2115 families of victims. However, the
recognition of violations suffered by victims and the compensations granted
does did not imply the questioning of the authors. At its March 2007 session,
the Human Rights Committee of the United Nations welcomed the restoration
of a institutionalised democratic process initiated in Chile. It was, however
concerned about the sustainability of a decree, under which persons who
committed violations between September 11, 1973 and March 10, 1978
continued to enjoy full amnesty, in contradiction with the provisions of the
International Covenant for civil and political rights.
10
« Les instruments de l’état de droit dans les sociétés sortant d’un conflit – Les commissions
de vérité », Haut-commissariat des Nations Unies aux Droits de l’Homme, 2006 : http://
www.ohchr.org/english/about/publications/docs/ruleoflaw-TruthCommissions_fr.pdf.
20
General Pinochet was appointed senator for life in 1998 in preparation for
his retirement, which guaranteed him a total immunity until his death. In
2005, that is, 32 years after the coup, the constitutional reform approved by
parliament eliminated the last authoritarian elements inherited from Pinochet
and was the final act of the democratic transition. It eventually ended with the
emergence of a more democratic regime respectful of human rights but where
both of the truth, compensation to the victims and especially the punishment of
perpetrators, the limits set by the regime of General Pinochet severely limited
and supervised the process. What about transitional justice mechanisms in
place in the African context?
1.3.2. Experience of transitional justice in the African context
Under this section, we emphasize on the cases of Post-Apartheid South Africa
and the case of Sierra Leone.
1.3.2.1. South Africa
South African Truth and Reconciliation Commission is one step ahead in
relation to the above-discussed countries of Latin America. It differs from
these in that it had to provide the possibility of granting amnesty against
precise and circumstantial detailed confessions. The South American truth
commissions allowed the prosecution after the filing of the report sequence
of events from the information it contained.
In the South African system, the testimony of the acts resulted in amnesty
after verification by the Commission that the crimes had been committed for
political purposes. The Truth and Reconciliation Commission of South Africa
offered amnesty to perpetrators of crimes based on the confession of their
crimes. The application for amnesty was heard in public. By this process, the
Commission hoped to not only obtain information that could not be otherwise
gotten, but especially to collect them through (the word) confessions of
criminals themselves. It was for this reason that the Commission focused on
victims’ dignity at the expense of sentencing the guilty, convinced that the
prospect of the sentence negates the testimony.
21
Indeed, experience has shown that the pardons, pleaded in public constituted
somewhat like a punishment since, majority of those who submitted for pardon
were people who until then had been regarded by those around them as highly
respectable people. It was often the first time as their neighbors, sometimes
even their spouses and family members, learned that they were renowned
torturers. The result was individually impactful both on the psychological as
well as on a family levels because of divorce11.
Another originality of the Truth and Reconciliation Commission in South
Africa was that of introducing forgiveness in a quasi-judicial process. This
provided in effect that victims could grant forgiveness to their tormentors.
Some authors have criticized this by noting that forgiveness is a moral absolute
that is inconsistent with the law. The TRC has also surpassed a judicial process
which is limited to individual responsibilities. It applied a justice whose
objective was to dismantle the mechanisms of crime by analyzing the role of
all sectors of society including among others: the media, corporations, judges,
scientists, etc. This methodology was used to determine the causes of the
criminal enterprise that has shaken the country on one hand, but also making
an inventory of the facts that really happened.
Most observers have presented the Truth and Reconciliation Commission as a
form of justice more complete than the trial. Others have complained against
it by asserting its emotions, it’s too sharp religious imprint, its inability to
bring some major APARTHEID officials before courts, its lack of questioning
of the versions given by those seeking for amnesty, its failure to compensate
victims’ families and the lack of conviction to imprisonment sentences. It
has been criticized at the same time for having been neither so judicial nor
political enough. However, this was due to the fact that the TRC was the
result of a compromise between the National Party and the African National
Congress. The two did not want their members to be tried and convicted for
« Pas d’amnistie sans vérité. Entretien avec l’archevêque Desmond Tutu », Esprit,
11
Décembre 1997, p. 55.
22
acts that each party considered justified. This choice reflected the political
situation in South Africa where the apartheid system was abolished not by
military victory, but through a political agreement. This scenario allows to
realize how difficult it is to combine the two approaches namely the judiciary
and the political12.
1.3.2.2. Sierra Leone
In the aftermath of the ten year long conflict, Sierra Leone has had a unique
experience of transitional justice. This country has set up two parallel
structures that are: the Truth and Reconciliation Commission established in
February 2000 and the Special Court for Sierra Leone (SCSL). The birth of
the Commission is an offshoot of the Lome Peace Agreement signed on 7 July
1999 between the Revolutionary United Front and the Government of Sierra
Leone, in a spirit of national reconciliation.
It had to address issues of violations of human rights committed in 1991 (date
of commencement of the conflict) to 1999 (date of signing of the Lome Peace
Agreement), with the following objectives: to create an impartial historical
record of violations of human rights, address impunity, respond to the needs
of victims, promote healing and reconciliation, preventing the resumption of
violence and abuse.
The Commission has used various approaches such as surveys of key events,
causes, patterns of abuse or violence, investigations of responsible parties,
organizing hearings sometimes public, to hear evidences and testimonies
from victims as well as perpetrators but also to any interested party. The
collection of individual statements as well as additional elements allowed the
understanding of each event reported.
Alexandre Adler, « Affaire Pinochet : Méfions-nous de l’angélisme juridique », Courrier
12
international, N° 418, 5-11 novembre 1998.
23
The Commission could collect any comments it considers useful for its
purposes and from any source whatsoever. It could visit all the places and
institutions and require all kinds of information. It could hold hearings of
individuals, groups, or members of organizations or choose to do it behind
closed doors and could also require sworn statements. The information could
be given confidentially with the guarantee not to be revealed.
There were limits to the power of the Commission, because it could not
punish the perpetrators. It could only propose reforms of legal or political
nature as well as administrative measures needed to continue its mission. One
therefore notes that the TRC was not a court, and therefore it did not punish.
It was only a place where everyone was telling what he had witnessed as a
victim, or what he had participated in as executioner. This Commission had
an important contribution to Transitional Justice. In fact, hiding the truth can
be an obstacle in the process of healing and reconciliation.
Regarding the SCSL, it was created at the end of the conflict by the UN at
the request of the Government of Sierra Leone, because it needed assistance
in developing a mechanism to address unpunished crimes. The SCSL was
established on 16 January 2002 by an agreement between the Government
of Sierra Leoneans and the UN, in accordance with resolution 1315 of the
Security Council, of which mandate was to prosecute “those who would
prove to bear the greatest responsibility for serious violations of international
humanitarian law and the law of Sierra Leone, committed in Sierra Leone
since 30 November 1996.”
The salient feature of this jurisdiction is that it is the only international court
for war crimes to sit in the same country where the crimes were committed.
The only exception is Charles Taylor, former president of Liberia whose trial
was transferred to The Hague by the Security Council of the United Nations,
for security reasons. In reality, Liberian President Ellen Johnson-Sirleaf had
felt that his presence in the region constituted a danger.
24
The SCSL provides neither life imprisonment nor death sentences. In eight years,
the court tried and sentenced eight leaders of the civil war to terms ranging from
15 to 52 years in prison. They serve their respective prison sentences in Rwanda’s
Mpanga detention facility. Regarding the former RUF leader Foday Sankoh *, he
died during his trial, while two other accused died before their arrest.
The Lomé Peace Agreement was to ensure the general amnesty of the
protagonists of the Sierra Leonean conflict. Its Article IX deals with forgiveness
and amnesty. It states:
“1 - In order to bring lasting peace to Sierra Leone, the Government will take
appropriate legal steps to grant free and absolute pardon to Corporal Foday
Sankoh.
2 - After signing this Agreement, the Government of Sierra Leone shall also
grant absolute and free pardon, and grace to all combatants and collaborators,
for all the misdeeds subordinated to the pursuit of their objectives until the
signing of this agreement.
3 - To consolidate peace and promote the cause of national reconciliation,
the Government of Sierra Leone shall ensure that no official or judicial
action will be taken against members of the RUF / SL, ex-AFRC, ex -SLA
or former CDF, for acts committed in pursuit of their objectives as members
of these organizations, from March 1991 until the signing of this Agreement.
In addition, legislation and other provisions that shall be needed to ensure the immunity
of former combatants, exiled and other persons currently outside the country for
reasons related to armed conflict shall be adopted to ensure the full exercise of their
civil and political rights, for their reintegration within the legal framework.”
Although the general amnesty under the Lomé peace agreement could have
advantages, it meant that not only the perpetrators of heinous crimes would
go unpunished, but also that victims would never get compensated. It was
then considered that justice was a precondition for reconciliation, because
where it would be denied to the victims, there was any likelihood of taking
justice into their hands and claimed compensation.
25
On the other hand, forgiveness could not be granted without the recognition
of crimes. However, there could be no reconciliation without full agreement
of forgiveness. Thus, Article 10 of the Statute of the SCSL provides that
amnesty already granted to a person within the jurisdiction of the Special
Tribunal will not be a bar to prosecution.
The Tribunal has assessed the scope of amnesties in international law and
invoked the principle of universal jurisdiction to solemnly proclaim that a
State may not deprive another State of its jurisdiction to prosecute criminals
by giving them amnesty. Accordingly, the Court held that amnesties granted
in Sierra Leone could not cover up the crimes of international law litigants,
since they fall under universal jurisdiction.
It is worth to mention that the key element for the work of the SCSL was
the accompaniment. The section on accompaniment played a role to bridge
between the Tribunal and the entire population of Sierra Leone by visiting
the districts of the country to explain the work of the Tribunal. Among its
activities, the Section works in schools on issues of justice, responsibility
and human rights. It trains participants for workshops, seminars on the work
of the Special Court, through radio programs, etc ... so was the example of
Charles Taylor trial which was broadcast at the courthouse in Freetown and
on radio stations in the region.
To assess the contribution of the accompanying program of the SCSL,
a national survey on public’s perception of the SCSL was conducted in
2006 by the Department of Peace Studies and Conflict at the University of
Sierra Leone. Respondents were randomly selected from predetermined
categories, including civil society leaders, heads of institutions, government
officials, professionals, children and women. Ten thousand questionnaires
were distributed throughout the country. The survey wanted to highlight
the achievements and challenges of the SCSL, but above all contribute
to the debate on the relevance of transitional criminal justice systems.
The most important results of this survey were that: 91% of respondents
believed that the SCSL had contributed to peace building in Sierra Leone, 88%
said that the SCSL was relevant to Sierra Leone, 85% thought perpetrators of
26
war crimes should be punished, 68% said that the verdicts of the SCSL would
not cause tension in the country, and 40% favored the death penalty as a way
to address impunity.
Some observers expressed concern about the simultaneous implementation
of these two institutions, fearing that the effectiveness of the Truth and
Reconciliation Commission is compromised by the very existence of the
SCSL, the fact that abusers could, for fear of prosecution, hesitate to speak.
Others have shown that in such a situation, the people would rather forgive
and forget rather than to see established institutions of transitional justice.
The choice that prevailed was that that favoured that at the end of violent
conflict, political and judicial responses can coexist.
The experience of Sierra Leone was very successful for countries emerging
from conflict. It showed that the institutions of transitional justice like the
Truth and Reconciliation Commission can coexist with criminal courts. It
also confirmed that the devices of amnesty cannot be extended to serious
crimes against international law. It also showed that amnesty is not a panacea
for dealing with serious violations. In fact, there can be no peace without
justice and no complete healing and true reconciliation without prosecution of
the main perpetrators of serious violations of international humanitarian law.
What about the Rwandan case that is specifically the basis of this study?
1.4. Need for transitional justice in Rwanda
Under this section, we shall first discuss the historical circumstances that
helped to establish a culture of impunity in the post-colonial Rwandan society.
Thereafter, we shall present the choice of Gacaca Courts as a solution to the
genocide cases
1.4.1. Evidence of the culture of impunity in Rwanda
The reality of the culture of impunity in Rwanda was the subject of many
researches and publications. Many scholars and observers of politics in Rwanda
agree that the period before independence and those that characterized the
27
two regimes that followed after independence have been marked by violence
and were never judged or punished. Indeed, led successively by the parties of
MDR-PARMEHUTU and MRND, the governments that were characterized
by ethnic grounds had several victims.
The year 1959 marked a turning point of impunity in Rwanda. In fact,
following what has been called “social revolution”, tens of thousands of Tutsis
were violently attacked and killed. Their houses were looted and burned and
the survivors made their way to exile in very large numbers. Others were
deported to the interior, to areas of Bugesera and unhealthy Rukumberi which
raged notably sleeping sickness.
Following this forced exile, some groups of refugees attempted military incursions
in Rwanda, after each of which (1963 - 1964, 1967, 1990) horrific repression
against members of the Tutsi ethnic group in Rwanda remained rampant. Regions
of Cyanika and Kaduha (Gikongoro) were particularly affected, as it peaked at more
than ten thousand people killed between December 1963 and January 1964.
Between February and March 1973, was triggered a new wave of Tutsi hunt
under the term “eviction”. Thus, in schools and in public administration and
private lists of names of Tutsi ordered to “clear out” were circulated, demanding
the immediate departure of the latter. Groups of Hutu killers roamed the school
and the National University in attacking, killing and forcing the survivors into
exile. This new wave of refugees swelled the ranks of Rwandans who had been
driven into exile in 1959. From 1990 to 1994, several massacres of Tutsi were
again committed in different parts of the country, particularly in the prefectures
of Gisenyi and Ruhengeri against the Bagogwe, Kibuye and Bugesera. Thus,
from 1959 to 1994, a criminal state was established as the perpetrators were
never brought to justice. Often the contrary, those responsible for killing and
anti-Tutsi pogroms were rewarded for their macabre zeal.
Note on this subject a typical example of Andre Nkeramugaba, the then prefect
of Gikongoro, the prefecture most affected by the massacres of 1963 to 1964,
who was promoted to head the list of the parliamentary elections of 1965. On
28
this point, Professor Faustin Rutembesa (in his book, …?) notes that: “We
crossed another milestone as well. Crimes were not only rewarded, but they
were under the label of militancy”. Here, he concludes that “we must situate
the emergence in Rwanda, the culture of impunity that has characterized for
over thirty years of crisis management.”
Note that this culture of impunity has played a leading role in public
participation in the genocide and crimes against humanity committed from
1990 to 1994. As had happened in the past, the leaders and perpetrators of
the killings were assured of not being prosecuted, let alone compensating
victims. It is this cycle of violence and impunity that the legislator wanted
to stop in Rwanda by establishing Gacaca courts, called upon to judge the
perpetrators of crimes of genocide and crimes against humanity, as part of
reconstructing the social fabric.
1.4.2. Choosing the Gacaca process as a mechanism for the management
of Genocide litigation
1.4.2.1. General post-genocide context and rationale for selection of
Gacaca Courts
In the aftermath of the genocide perpetrated against Tutsi, Rwanda has faced
several major challenges including that of justice for the victims, ensuring
that genocide perpetrators are brought to book and thus eradicate the culture
of impunity. To do this, any persons suspected of involvement in the genocide
were arrested. The number of prisoners continued to grow, so much so that it
surpassed the capacity of ordinary courts to handle.
The latter could ensure their usual procedural rules of detention which relate
either to titles covering incarceration, the validity of such securities and time
requirement to appear before the judge, with respect to procedures designed
for normal periods. It must be said that the judiciary itself was left in disrepair
29
by the almost total collateral effects of the genocide. To these was added the
duty to restore the social fabric of the society - almost completely destroyed
by the effects of the same tragedy.
To cope with this situation, Rwanda, with support from foreign partners
involved in the justice sector proceeded in 1995 to rebuilding the justice
system, by recruiting and training many new agents. In addition, a particular
frame of prosecution and trial of offenders of the crime of genocide and
crimes against humanity was created. Indeed, it was not only able to prosecute
and punish all those involved, but also had to accelerate their judgment and
that in order to rebuild Rwandan society. This framework was functional by
December 1996.
But despite the efforts of capacity building of the judiciary in both human
and material resources, and despite the device of the legal framework of
prosecution and trial designed to ensure the speed of the procedure, cases
tried for four years did not reach about 1/50th of all pending cases. This
interpellated the Government and brought it to consider other alternatives.
The discussions initiated for this purpose as part of a broad consultation of the
general population transpired into an alternative and partly complementary
to the classical justice, the use of traditional justice. This traditional justice –
the Gacaca, is a form of a participatory conflict resolution mechanism that is
conducted in public before whom the crimes to be judged were committed.
The question of why this choice is worth asking. It is well known that under
normal circumstances, criminality is an isolated phenomenon. However, this
was not the case during the genocide against Tutsi, for these crimes were
planned and organized by public authorities which, logically would also trace
the way forward for its citizens. Fortified by support from the authorities,
perpetrators did not attempt to hide their crimes; for they were assured that
they were in compliance with the will shown by the very people who would
otherwise apprehend them.
30
Thus, the crimes constitutive of the crime of genocide and crimes against
humanity were committed publicly in full view of everyone. Accordingly, the
judgment of such violations had to be based on the testimonies of people living
in such places where these offenses were committed. Since whatever the justice
system used, the only source of information consisted only of testimonies, it
became imperative to create conditions for equitable justice, taking into account
the particular situation in which the crimes were committed.
The institution of participatory justice system – the Gacaca, was the subject
of discussions initiated in 1998 as part of the meetings held in the “Village
Urugwiro”, under the patronage of the then President of the Republic of Rwanda,
Mr. Pasteur Bizimungu. Indeed, the problem of how to handle genocide cases
was one of the main topics that attracted the attention of participants at these
meetings. It was the opinion of all, that there was need for a justice system that
allowed not only to punish the guilty, but above all to restore social dialogue to
rebuild society on a solid foundation. The idea of ​​using the traditional system of
dispute resolution was adopted by the majority. An ad hoc committee was then
established in October 1998 with a mandate to study the capacity to absorb the
genocide cases. The report of that commission issued in 1999 was then the basis
for a wider consultation of the population.
A 2000 survey by the League for the Promotion and Defense of Human Rights
in Rwanda (LIPRODHOR) on attitudes and opinions of people about these
people’s courts showed that three out of four Rwandans were supportive of
Gacaca courts. This survey was conducted locally throughout the country,
with a sample of 943 persons. These represented all social classes; from
ordinary citizens to authorities, government employees, judges as well as
representatives of the civil society.
Considering the social groups consulted, it appeared that among the 15, 3%
of respondents who were survivors, 81.94% thought that the Gacaca courts
would achieve national reconciliation. 37% of all respondents felt that there
couldn’t be reconciliation between people who accused each other.
31
According to 83% of Rwandans interviewed certain attitudes such as lying at
37%, the refusal to testify at 24%, corruption, ethnicity and clannishness to
22% were likely to be a handicap for Gacaca Courts. In the same proportion,
83% of respondents proposed that those found guilty of giving false
testimonies should be jailed according to the law. 30% on the other hand,
felt that guaranteeing the security for the witnesses was a prerequisite for the
latter to speak freely. They also added that there should be compensation for
those who are assaulted because of their testimony.
Following various consultations, the Government of National Unity released
a draft law on Gacaca courts, which opened a series of discussions between
representatives of various groups of the population and international actors.
The initial draft was then amended, adopted and established as a law, under
Law No. 40/2001 of 26 January 2001 setting up Gacaca courts and organizing
prosecutions of offenses constituting the crime of genocide or crimes against
humanity, committed between 1 October 1990 and December 31, 1994,
fully modified by Law No. 16/2004 of 19/06/2004. It is this law that is now
applicable though with modifications and amendments made to date.
1.4.2.2. Weight of genocide litigation and risk of impunity
After the genocide which, according to official figures, claimed the lives of
over 1,074,017 people, among whom, 93.7% were Tutsi, it is primarily the
traditional judicial logic that was adopted. First, the extent and severity of
genocide justified the arrest and trial of its authors. Moreover, the context
of the perpetration of crimes characterized by massive participation of the
population and the criminality by the state for over more than thirty years of
impunity, required an exemplary punishment of the authors.
Unfortunately, the judiciary was completely dilapidated and destitute. On
the other hand, the idea of ​​a general amnesty was inconceivable vis - à vis such a tragedy. According to statistics provided by the Supreme Court
in November 1994, the judges numbered 244 against 785 before April 1994
and 12 prosecutors against 70 during the corresponding dates. With regard
to judicial police officers, secretaries of prosecutors and court clerks, their
number was reduced from 631 by April 1994 to 137 in November 1994.
32
The combined efforts of the Rwandan Government and donor funding for
training of staff and officers of the judiciary helped bring the number of
judges to 841 in 1999, that is, after a period of approximately five years of
organizing sessions, the prosecutors to 210 and the agents of the judicial
branch to 910, an increase of between 3 and 20 times the number that was in
place in November 199413.
All in all, this is the staff that had to handle not only those offenses, but also
ordinary trials, from the publication of Organic Law of 30 August 1996 on
organization of prosecutions for offences constituting the Crime of Genocide
and crimes against humanity. However, despite the strengthening of the
judiciary in both human and material resources, the results obtained showed
that the capacity of the said apparatus remained considerably below the task
before it.
Indeed, the number of detainees had increased year by year. In October 1994,
approximately 58,000 prisoners were detained for acts of genocide and in 1998
they numbered 135,000 people. The maintenance costs of such a population
were high and were likely to frustrate any attempt of country’s economic
recovery. To illustrate it clearly, the State spent 2,000,000,000 francs on its
1998 budget to buy food for inmates. Although it represented two thirds of the
budget of the Ministry of Justice, this amount was so inadequate that it had to be
supplemented by substantial contributions from the International Committee
of the Red Cross. In 1999, this budget had risen to 1, 500, 000,000 Rwf for
the mere purchase of food, equivalent to 39.5% of the budget allocated to the
Ministry of Justice which amounted to Frw 3,800,000,000. The importance of
such amounts, if given the high budget of the country but very inadequate in
light of actual needs of the prison population could not leave the government
indifferent14.
The Organic Law adopted on August 30, 1996 proceeded, on the one hand, from
the desire to eradicate impunity and on the other, the concerns for rendering
République du Rwanda, Cour suprême, Département des Juridictions Gacaca, « Les Juridictions
Gacaca comme solution alternative au règlement du contentieux du génocide », Kigali, Octobre 2003.
13
Ibidem.
14
33
justice quickly in order to rebuild the Rwandan society15. This law encouraged
the accused persons to cooperate with justice to benefit from a significant
reduction of sentences. To this end, it established a confession and guilty
plea procedure, acceptance of which included a reduced sentence. Depending
on the category, it could range from death penalty to life imprisonment or
imprisonment provided for under the Penal Code to 1/3 of it.
Genocide-related trials began before specialized chambers in December
1996. To ensure the acceleration of trials, an awareness campaign on the
procedure of confession and guilty plea was organized, while at the same time
strengthening the judiciary, as seen previously, prescribed the grouped trials.
This should have ensured optimum acceleration of trials, but it was noticed that
only 1292 persons had been tried until 1998 and very few of these prisoners
had confessed despite government efforts in this regard. In November 1999,
the number of cases tried was 2551. It was deduced that, at this rate, it would
take nearly 160 years to try all genocide suspects detained in Rwanda. It then
became necessary to think about other alternatives to address the complex
and cumbersome issue of genocide.
The instituted Gacaca courts combined both elements from the customary practices
and dispute resolution aspects of modern justice. The procedure of these courts
was based on a customary rule of participatory justice where “everything works
with the population and by the population.” The people, especially those that were
present at the time these crimes were committed, were both judges, parties and
witnesses. That is why the perpetrators were not produced before the courtroom
by a court, but at the scene where the incident occurred, for a reconstruction of
historical truth and justice. If we allow a comparison between the two judicial
systems, the traditional Gacaca had the mission to restore social ties and was not
involved in violent crimes and does not inflict criminal punishment. The modern
Gacaca system was designed as a true vocation to retributive criminal court,
whose proceedings were held in open sessions.
Organic Law nº 08/96 of August 30, 1996on organisation of prosecutions for offences
constituting the Crime of Genocide and crimes against humanity committed from October 1, 1990, Official Gazette nº17 of 01/09/1996
15
34
The judges - ‘Inyangamugayo’ (persons of integrity) were elected by the people
under the coordination of the electoral commission. They were empowered
to conduct investigations, to issue summons, to decide pretrial detention and
impose sentences and acquittals. These courts were so innovative and were
equipped with full judicial powers, but could not succeed in their mission with
the massive participation, voluntary and active population. The involvement
of the people allowed the Gacaca courts not only to operate, but also to
establish the legitimacy of trials. Thanks to Gacaca courts, the total number
of cases heard corresponded to 1,222,093 cases during field surveys16.
1.4.2.3. Legal framework of the fight against impunity in relation to
genocide
The eradication of the culture of impunity as defined and applied by the
Gacaca courts, is grounded in the legal rights of victims to seek justice and
that of the accused to receive fair trials. Rwanda being bound, in criminal
matters, by obligations under international conventions it has ratified, Gacaca
courts had to apply these principles too.
The provisions of applicable domestic law are enshrined in the Constitution
of the Republic of Rwanda and in the Organic Law No. 16/2004 of 19/6/2004
establishing the organization, powers and functioning of Gacaca Courts
entrusted with prosecuting and trying the perpetrators of the crime of genocide
and other crimes against humanity committed between October 1, 1990 and
December 31, 1994, as complemented and amended to date. Its preamble
provided for the rule to eradicate the culture of impunity as follows:
“Considering that these offenses were committed publicly, in front of people,
therefore the population had to participate in the establishment of the facts,
revealing the truth and participate in the prosecution and the judgment
of perpetrators; Considering that the duty to testify is a moral obligation
of every Rwandan patriotic, no one is entitled to dodge it for any reason
whatsoever. Considering the need to achieve reconciliation and justice in
Rwanda, to eradicate the culture of impunity forever (...) not only aiming for
Information given by SNJG in December 2010.
16
35
simple punishment, but also the rehabilitation of Rwandan society which had
been drawn into decay by the bad leadership which incited the population to
exterminate a part of this society.”
Indeed, the fundamental guarantees of a fair trial are expressed in the
Constitution of the Republic (Article 19 and 140) and in the organic law
governing Gacaca courts (Art. 10, 13-16, 23, 33-38, 50 , etc..), the right
to information about the file, to appear in person and to a public trial and
contradictory (Art.21, 29, 31, 70, 80, etc ....), the right to the presumption of
innocence (Art.39), the right to a reasoned court judgment (Art.25, 67, 69),
the right to be tried within a reasonable time (preamble), the right to due
process of criminal offenses and penalties (Art. 72-81), etc.
However, as pointed out in response to the NSGC PRI report published in July
2007 on offences against property while analyzing the work of the Gacaca
courts, “it should be placed in the context of genocide, by not solely relying
on legal principles that have general and somewhat frame it with Rwandan
realities but also the unfortunate history of genocide in our country.”
Internationally, the most relevant instruments in this area are contained in
Article 14 of the’’ International Covenant on Civil and Political Rights’’ and
in section 7 of the’’ African Charter of Human and Peoples rights’’.
After clarification of the context that led to the choice of Gacaca as a mechanism
to handle genocide cases, it is important to make an overview on the side of
the scientific literature on that process. This is an opportunity to provide the
insight from our research in the widening debate around the subject which is
the basis of this study.
36
1.5. Brief overview of the scientific literature on the Gacaca courts
The Gacaca process, as currently conceived, is a mechanism that is very
complex and whose conceptualization in foreign literature is scant. These
writings are generally based on observations of short duration and are often
inspired by reference frameworks not suitable for post-genocide context.
Four basic reasons underlie this situation: first, Gacaca was a dominant
mechanism for resolving social conflicts in the pre-colonial Rwandan society
(which persisted even after the advent of colonial rule) yet, very little scientific
research was conducted on it before the 1994 genocide, the article written by
Reintjens17 being a notable exception.
Second, its resurgence and its enrichment based on discussions held in Village
Urugwiro in 1998-1999 that led to taking the genocide into account did not
result from debates between theorists of law or conflict management, but
rather, a matter of political pragmatism. Indeed, the Government of National
Unity faced with the legal impasse created both by the massive participation
of people in the genocide and the destruction of the judicial system, had to
design a unique and original system that would maximize opportunities for
access to the truth in respect of the law. Thus, changes in laws, the attitudes
and actions of the players on the field, were essentially dictated by the
requirements of practice and not by changing theoretical debates generated
by academic work.
Third, the most elaborate research work carried out across Rwanda mainly
focused on the history of the Gacaca process. But from the perspective of
the spirit of social science research, these are works of historiography that
are not always guided by specific hypotheses. These kinds of researches
compare precise research variables, and exclude or keep out of the case study
other relevant parameters, of course, but that are not targeted by the research
question. Therefore, the said work does not emerge explicitly qualitative and
quantitative indicators as a basis for replication of the same type of research
or the testing of the partial results.
17
Reintjens Philippe, Gacaca ou la Justice de Gazon, 1990.
37
Fourth, the work of foreign researchers generally suffers from three
major limitations: the first as highlighted in the article by Meyerstein18 is
epistemological. The author considers that some researchers, especially
those working for human rights organizations, erect first of all, standard
measurement benchmarks defined by their organizations.
They then wonder if the Gacaca process satisfies or does not satisfy their own
benchmarks that they have conceived as universal models. In other words, it
is as if these researchers wondered whether Gacaca courts respond or not to
their own way of thinking about transitional justice and not to say the ability
of authorities to handle the litigation of genocide.
The second limitation relates to the fact that some researchers who come to
Rwanda are less concerned with testing hypotheses that support the operational
position of the organizations that sponsored this research. The expression of
such a notorious positioning is particularly noticeable in the article by Corey &
Joireman: “This Article Argues That the Gacaca process Will contribute to the
Insecurity of all Rwandan Citizens in the future, since it pursues inequitable
justice, accentuates the ethnic divide and will be Interpreted as revenge”.19
One writer like Tiemessen20 goes as far as predicting that the Gacaca process will
exacerbate ethnic tensions while it was just at the stage of experimentation:
“The Gacaca courts were resurrected in Rwanda as an indigenous form of restorative
justice. The Principles and Process of these courts hope to mitigate failures of the
“Arusha Justice” at the tribunal and seeks to punish or reintegrate over one hundred
thousand genocide suspects. Its restorative foundations require that suspects will
be tried and judged by neighbors in their community. However, the revelation that
Gacaca is a reconciliatory justice does not preclude its potential for inciting ethnic
tension if it purports to serve as instrument of Tutsi power “.
Meyerstein, A., Between Law and Culture: Rwanda’s Gacaca and Postcolonial Legal-
18
19
20
ity. Law & Social Inquiry, 2007, 32: 467–508.
Corey & Joireman, Retributive justice: The Gacaca courts in Rwanda, London, 2004,
73-89.
Tiemessen, A After Arusha: Gacaca Justice in Post-Genocide Rwanda African Studies
Quarterly., 2004, .8(1). Fall. Downloaded 8 March 2005, p.1.
38
Finally, researcher Sarkin21, gives lessons on morality, suggesting that the
Gacaca process does not even attempt to bring the perpetrators to justice
because, as she puts it in her words, it would cause more harm than good: “(...)
as so many years have elapsed since the genocide of 1994 that the Authorities
cannot, and should not, seek to prosecute all those accused of participating
in the slaughter because attempting to prosecute all those in detention may
cause more harm than good”.
Careful analysis of this type of literature shows that research underpinned
by different political positions lead to opposite conclusions, even though
they were taken at the same period and on the same ground. The findings
of Tiemessen22 and Wierzynska23 offer an excellent example in this regard.
In his article, Tiemessen sees the Gacaca Courts as a control justice system
inspired by minority ethnocracy, while Wierzynska sees it as a mechanism for
consolidating democracy in these terms:
“First, the Gacaca process encouraged the Rwandese people to voice their concerns
and to begin to question the authority, thereby weakening the authoritarian
government’s monopoly on power. Second, the Gacaca process channels the people’s
disaccord through a dispute-resolution process rather than through violence, thus
demonstrating the potential for democratic contestation to serve as an alternative to
violent conflict “
The third limitation relates to the well-known phenomenon in social science
“research from a distance”, where the authors raise issues that do not relate to
the situation on the ground. This low mastery of the local context leads them
to draw conclusions that highlight their ignorance of local conditions. This
trend is clearly noted in the article by Schabas24. The latter estimates that the
Sarkin J., The tension between Justice and Reconciliation in Rwanda: Politics, Human
21
22
23
24
Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide,
Journal of African Law,Volume 45, 200:11.
Tiemessen, A. After Arusha: Gacaca Justice in Post-Genocide Rwanda African Studies
Quarterly, 2004, 8(1). Fall. Downloaded 8 March 2005.
Wierzynska, A. Consolidating democracy through transitional justice: Rwanda’s Gacaca courts, New York University Law Review, 2004, p.1.
Schabas W., The U.N. International Criminal Tribunals: The Former Yugoslavia, Rwanda
and Sierra Leone, Cambridge University Press, 2006, p.1.
39
high number of suspects who should be brought before Gacaca courts was
due to a generalized phenomenon of slander during the pilot phase, rather
than the massive participation of local people in the genocide:
“Because the pilot phase encouraged denunciation, instead of offering
‘closure’, the process has actually revealed a much broader popular
participation in the atrocities of 1994. Rwandan authorities now say the
Gacaca process will prosecute more than 1, 000,000 suspects “(p.1).
Given the contradictions which are noticed in existing literature, it does not
allow to have a coherent vision of what the process of Gacaca has achieved,
or to identify its real weaknesses in the handling of the genocide litigation.
In our opinion, the deficiencies in these writings are related to a low level of
analysis of the concept under study and a lack of control of ground realities.
1.6. Review of objectives and expected results from Gacaca Process
evaluation
As can be seen from experiences elsewhere and reasons that led the
Government of National Unity to opt for the Gacaca courts, we note that the
transitions are characterized not only by thirst for justice, but also by thirst
for peace, which involve a process of reconciliation. The issue of transitional
justice reduces to the question of what to do, assuming that it is impossible to
apply international standards of justice.
In relation to the above, five key objectives were assigned to Gacaca process:
it was expected that the particular handling of the genocide litigation by the
people would discover the truth and establish the personal responsibility
of each suspect. The participatory nature of these courts would also have a
cathartic effect and print in the minds of people, the idea that genocide cannot
go unpunished even if it involved thousands of people of any class.
Corollary, the increase in benches would ensure acceleration of trial without
violating the rules of criminal procedure and adversarial principle. Finally, it
was expected that the discovery of the truth through the admission of guilt
begins a process of reconciliation between survivors and those convicted, who
40
agreed to tell everything they did and benefited from Gacaca courts sessions
to ask for forgiveness from their victims.
Under this research, we were tasked to assess the degree to which the Gacaca
process has permitted to access the truth, speed-up trials, fight against
impunity, contribute to national reconciliation process and demonstrate the
ability of Rwandans to solve their problems.
This evaluation report is structured around six chapters, the first
is devoted to the clarification of the methodology that guided the
choice of sample sites visited and people interviewed at each site.
The second chapter deals with the results achieved by the Gacaca process in
accessing the truth about crimes committed during the genocide. The third is
devoted to speeding up of trials by Gacaca courts. The fourth chapter focuses
on the contribution of the Gacaca process in the fight against impunity,
while the fifth examines the impact of the Gacaca process in the beginning
of reconciliation. The last chapter examines the contribution of the local
population in finding solutions to critical problems occasioned by the genocide
(homemade mechanisms).
But before entering deep into the matter, it is important to clarify the research
methodology that guided the selection of the sample and conducting field
investigations, and we mentioned a few lines in addition.
41
CHAPTER I
METHODOLOGICAL APPROACH
1.1. Introduction
Clarification of the methodology that guided our field research is needed in
many ways. Indeed, methodology is defined as the assessment instrument or
rather more precisely as an ultimate verification. Therefore, from the scientific
point of view, the one who commissioned for this research but who was unable
to monitor the progress of investigations, or even the reader who does not know
the field of inquiry, thereby derive useful information. Thus, it allows them to
get a clear picture of the actual conduct of the field research operations, assesses
their effectiveness and places the results achieved in their proper context.
It is also from the methodology that we may judge the reliability of the findings.
Thus, a researcher willing to re-conduct the study or some of its aspects for
purposes of verification or extension of the conclusions, will find valuable
information. In the same vein, the clarification of the sampling makes it possible
for other researchers to evaluate the question of generalizing conclusions about
an entire population. They can then conduct comparative studies on samples
drawn from the same population and selected by the same criteria.
Our methodological approach is structured around three axes: in the first, we
show that one cannot grasp the real impact of the Gacaca process in access to the
truth, speeding up trials, the fight against impunity, promoting reconciliation after
the genocide, as well as the leveraging of people in finding solutions to critical
problems left by the genocide, without taking into account the time dimension.
Indeed, the latter captures the improvements induced by the experience
of judges through different phases of the Gacaca process. To realize this,
we chose to include in our research an approach called “processual”. The
second component allowed us to clarify the dimensions of analysis, as well
42
as concrete indicators of each dimension on which we focused our empirical
investigations. Finally, the last orientation briefly presents the sample of
Gacaca courts in which we conducted the assessment and respondents within
each selected jurisdiction.
1.2.
Choice of the processual approach as a method of investigation
Any evaluative activity normally relates to the identification of changes induced
by public policy, an action plan, a specific program or project limited in time
and space. At this level, we may say that the impact of the program under
evaluation cannot be realized without passing through an analysis of changes
of its different phases. Such guidance falls squarely to the evaluation process
of Gacaca courts in the methodological approach called “processual”.
A brief analysis of existing literature on this methodology shows that it
gradually emerged as a successful method since the 1990s, especially in the
analysis of changes induced by identifiable organizational strategy25.
According Petigrew, the processual approach focuses on the links that exist
between the context, the process of action and the results achieved by the
organization. To do this, researchers who are part of this approach are interested
in sequences of events placed in their local context and focus of comprehensive
analysis, which materializes in the form of advanced qualitative studies. To
subscribe to the research in form of the processual approach is therefore to
wonder about the ins and outs of the process of concrete actions, the central
concern of the researcher to demonstrate this approach is therefore mainly to
capture “the last logical sequences of events “.
Applied to the evaluation of the Gacaca process, the processual approach
allows, as, mentioned before, to capture progress in its various phases and
especially to highlight the achievement of each objective by the Gacaca courts
at the cell, sector and the appellate body. There remains the question of the
choice of variables that we observe the evolution during the evaluation.
Pettigrew, A.M What is processual analysis. Scandivian Journal of Management , 13,337-
25
48.
43
1.3. Choice of the observational variables and their translation into
empirical indicators.
As per the terms of references for this evaluation, our task was to show to what
extent has Gacaca courts contributed to the revelation of truth, the speeding of
trial procedures, fighting against impunity, contributing to the national unity,
as well as in demonstrating the local capacities of Rwandans in resolving
their own conflicts.
In doing so, it was imperative to first define the observational indicators to
allow the determination of, to some extent, each of the five objectives of the
Gacaca courts was achieved. Regarding the access to the truth about what
happened, we refer ourselves to the indicators contained in the manual for the
collected information as summarized here below:
Table Nº 1: Selected evaluation indicators with regard to access to the truth
Degree of access to truth
Identifying suspects
Catalysts, organizers and
participants in genocide
preparatory meetings
Those who drew up lists of
people to exterminate
Those who distributed the
murder weapons
Those who gave the order to
set up roadblocks
Those who “worked” at
roadblocks
Organizers and participants
in the attacks in cells
75100%
44
7550%
5025%
25-0%
No
answer
Organizers and participants
in attacks from cells that
attacked elsewhere
Identification of victimes
Inhabitants of the cell
killed due to genocide and
torturers
Inhabitants of the cell killed
because of their refusal to
participate in the genocide
and their torturers
Inhabitants of the cell also
killed from elsewhere due to
genocide and their torturers
Inhabitants of the cell also
killed
from
elsewhere
because of their refusal to
participate in the genocide
and their torturers
Victims killed at each
roadblock
and
their
torturers
Victims of attacks carried out
elsewhere by inhabitants of
the cell and their torturers
Identification of the places
where the bodies of victims
were thrown
45
Effective identification of
victims’ bodies
Demonstration of the nature
of the death of each victim
and mutilations committed
on their body
Identification
of
“
« rightful
ones »
Identification of the places
where
survivors
were
hidden
Identification of survivors
of each hiding
Source: Elaboration by authors, June 2010
In each jurisdiction visited by our field investigators, we were interested to
know whether the information on the above 19 indicators have been highlighted
by the Gacaca process, or whether the Gacaca process has failed to unravel the
mystery of silence to establish liabilities in the genocide. These quantitative
data was then supplemented by the qualitative data from interviews.
Once the issue of access to the truth clarified, we are interested to know whether
the Gacaca process has speeded up trials more than ordinary courts could do.
To do this, we referred to the number of hearing sessions that each degree
took, that is; the first degree trial, appellate and trial of the third category. But
given the large number of files, we are also interested to know the average
waiting time between sessions of the same trial.
46
Table No. 2: Observation indicators for the second objective of the Gacaca
process: Speeding of trials
Observation indicators
Average sessions during the trials at the first degree
Average sessions at the appeal hearing
Average sessions during the trials of the third category
Average waiting time between successive sessions of the trial for first
degree
Average waiting time between successive sessions for appeal hearing
Average waiting time between successive sessions for trial of the third
category
Source : Elaboration by authors, June 2010
The data for this purpose was collected mainly from the analysis of the
archived trials. For the three types of trials (trials at the first degree, appeals
and litigation on property), we took into consideration the dates on which
various sessions of the trial were held to derive the average number of sessions
by each type of trial. Then, we focused on the waiting time between sessions
to deduce the average number of days to wait between three types of trial.
Regarding the third objective of the Gacaca process on the fight against
impunity, we focused on four key indicators summarized in the table below:
47
Table 3: selected evaluation Indicators regarding the second objective of
the Gacaca process, namely the fight against impunity
Selected indicators
Effectiveness of the use of the facts reported during the collection of
information in the drafting of indictments
Consideration of additional information obtained during the hearings in the
trial from the confrontation of testimonies
Match between the crime and the sentence imposed to ensure compliance
with legal provisions in the same jurisdiction and in different other
jurisdictions
Examining the relationship between compliance and penalties served and
the verdicts.
Examination of the reliability of the information obtained during the trial
that would have result in the identification of new suspects still at large at
the trial stage
Source: Elaboration by the authors, June 2010
First, we were interested in knowing how the information collected on the
preceding indicators was legally processed to give rise to the formation of the
indictments. Given the participation of thousands of people in the genocide,
we were concerned about whether the judges were not overwhelmed by the
quantity and diversity of information obtained from the planning, organization
and execution of the genocide in their respective cells. Specifically, we tried
to find out how the information came from several sources and that relate to
a single or group of suspects who have worked together, were processed and
organized to form the indictment. As we shall see later, the data relating to
this indicator shall be supplemented by those from the analysis of archived
trials.
The second indicator relating to the fight against impunity was concerned with
the application of the existing laws by the judges. For each trial analyzed, we
were interested in the match between the crime and sentence, to whether or
not there was effective enforcement of laws.
48
Finally, the last flag on the fight against impunity was related to the enforcement
of sentences. We particularly wanted to know if the sentences against the
culprits have been served in accordance with the verdicts.
Regarding the fourth objective of gacaca, which deals with the promotion of
reconciliation, we examined how the truth revealed by the above mentioned
process has contributed to the reconciliation. Corollary, we were interested in
knowing how the partial confessions or silence constituted a handicap to this
approach.
As can be seen in the table below, three indicators were taken into consideration
when evaluating:
Table 4: Indicators assessing the fourth goal of the Gacaca: promotion of
reconciliation
Observation Indicators
Identification of reconciliation instructive cases which have been realized
through the revelation of truth during the Gacaca trials.
Identification of cases of known conflicts that arose from unexpected
revelation of truth
Identification of cases of known conflicts that were born out of partial
confessions, lies and silence.
Source: Elaboration by the authors, June 2010.
The data collected on these indicators were qualitative in nature. They were
collected based on interviews and written questionnaires. The empirical
investigations in the interior of each observation site have concentrated on
identifying cases of reconciliation. These were made possible through access
to the truth, the conflicts that arose from the revelation of the truth about
the crimes committed and finally, the case of conflicts that were born out of
partial confessions, lies and silence.
49
The fifth objective is part of a much broader vision, which is to rely primarily
on the potential of Rwandans. Indeed, they were called to seek their own
solutions to problems that faced them. Thus in this study, it was a question
of analyzing important aspects of this component, the capacity of Rwandans
to manage the genocide. Therefore, field research focused on empirical
indicators below:
Table 5: Demonstration of the contribution of people in finding solutions to
litigation of genocide
Indicators of observation
Originality of the Gacaca process in support of litigation of genocide
Contribution of local people in gathering information on crimes
committed
Contribution of the process of confession and guilty plea in achieving the
objectives assigned to the Gacaca courts
Mechanisms of reconciliation initiated locally made possible by Gacaca as
space for dialogue
Source: Elaboration by the authors, June 2010.
The classical approach to evaluation is to compare only the objectives
originally laid out with the results achieved by the end of the process is not
sufficient to account not only the complexity but also changes induced by
experience in different phases of the Gacaca trials. Given this, we completed
the analysis related to the indicators defined above by examining the laws,
instructions and official reports produced by external organizations that have
followed these Gacaca trials.
For our case, we specifically sought to make, on the identification of the tasks
assigned to the presidents and judges of Gacaca courts, the procedure for
conducting data collection, comparison of sources to determine the facts on
which compilation of files was based, the conduct of trials and sentencing.
The objective of this exercise was threefold:
50
First, this analysis was to guide us in highlighting the changes in legal
provisions. Second, it allowed us to determine to what extent the conduct of
the trial was inspired by the legal texts. At this level, it was for us to better
understand the differences between what was done and what was expected of
the Gacaca courts. Third, we were interested in the evolution process of the
said jurisdictions.
1.4Sampling of the Gacaca courts, interviewees and trials analyzed
1.4.1. Sampling of Gacaca courts engaged during the evaluation
By closely analyzing the archives of the Gacaca courts in our possession, we
found out that 751 cell level jurisdictions have worked full time during the
pilot phase of collecting information, and that their number has increased to
9008 during the generalization phase of information gathering.
With this generalization, the National Service of Gacaca Courts has been
assigned the coordination of 1,545 Gacaca Courts of Sector, 1,545 Gacaca
Courts of Appeal and 9013 Gacaca courts on a cell level, which judged
818,564 suspects for their involvement in genocide. This increase was due
to the arrest of new suspects who were then still at large. The later have been
exposed while trials were already under way. It is the same for the acquittal
of the innocent *.
Finally in October 2007, the task of coordination became even more complex
because the NSGC had to ensure coordination of 3348 courts at the sector level
and 1957 appellate courts all of which were working full time to complete the
trials according to the fixed deadline.
Ideally, all jurisdictions had to be covered by the research to give a picture
that is as accurate as possible regarding the achievements of five objectives
for the Gacaca courts. But such work was not feasible to conduct, because of
the scope of the task and the complexity of parameters to be considered.
51
Given the strong influence of the local context in understanding the process
of gathering information and conducting trials in different jurisdictions, we
chose an analytical approach “intra-site”, followed by a comparison “between
sites “ to identify similarities and differences between jurisdictions. Regarding
the choice of jurisdictions in the sample, we opted for the sample called
“maximum variation” to better address the issue of variability of information
from different respondents.
In practice, this technique has been materialized by the choice of two Gacaca
Courts of cell in each district, two Gacaca courts of the Sector and 2 Gacaca
Courts of appeal.
This approach offers a significant advantage in our view. In fact, the description
of intra-site cannot be neglected in favor of specific local trends affecting
the country. It is indeed known that within the same district, however, two
courts located in close villages may well have different experiences in terms
of revealing the truth for example. At the same time, the comparison between
sites has identified regularities shared by courts, even though they were
located in remote areas.
The map below gives an overview of the jurisdictions included in our
sample:
52
Source: Elaboration by CCM, June 2010
1.4.2. Sampling of interviewees within each sector
The parties who had interests to defend or protect have conveyed different
opinions throughout the pilot phase, that of the generalized collection of
information, and even during the conduct of trials. To better address the issue
of variability conceptions and interpretations of stakeholders, the selection of
respondents within each site has respected the principle of stratification.
Thus, for each selected area, we had planned to interview a theoretical sample
of 63 people (at the rate of 21 people per type of jurisdiction), representing
each of the following strata: the survivors, those convicted by Gacaca Courts
and who have served their sentences, the prosecution witnesses and defense,
judges, representatives of local authorities and those of the police who
monitored the conduct of trials.
53
Then we had representatives of independent observers (civil society, churches,
NGOs etc..), representatives of citizens who have not only a thorough
knowledge of the region, but also following closely the progress of the
collection of information and trials. Reported nationally, we had to interview
63 respondents in 60 selected sectors, which amounted to a total of 3,780
respondents throughout the country. Given this large number, these people
were subjected to a written questionnaire which is herewith attached.
The tables below show the actual sample of respondents who were interviewed
during actual assessment
Table N° 6 : Sample of individuals interviewed in the City of Kigali
District
Nyarugenge
Gasabo
Kicukiro
Sector
Kanyinya
Nyakabanda
Gikomero
Jali
Gikondo
Nyarugunga
Total
Source : Elaboration by authors, June 2010.
54
Number
45
56
63
63
61
63
351
Table N° 7 : Sample of individuals interviewed in the Southern Province
District
Nyanza
Gisagara
Nyaruguru
Huye
Nyamagabe
Ruhango
Muhanga
Kamonyi
Sector
Muyira
Nyagisozi
Kansi
Save
Kibeho
Nyagisozi
Kigoma
Maraba
Gasaka
Uwinkingi
Kinazi
Ruhango
Nyamabuye
Rongi
Kayumbu
Mugina
Total
Source: Elaboration by the authors June 2010.
55
Number
63
56
63
63
63
63
63
53
63
63
58
61
59
62
63
63
979
Table N° 8 : Sample of individuals interviewed in the Western Province
District
Karongi
Rutsiro
Rubavu
Nyabihu
Ngororero
Rusizi
Nyamasheke
Sector
Gitesi
Rubengera
Gihango
Rusebeya
Bugeshi
Gisenyi
Kintobo
Mukamira
Ngororero
Sovu
Mururu
Nkanka
Bushekeri
Kagano
Total
Number
62
63
63
44
63
63
63
63
60
45
53
62
49
63
816
Source : Elaboration by the authors June 2010.
56
Table N° 9 : Sample of respondents in the Northern Province
District
Rulindo
Gakenke
Musanze
Burera
Gicumbi
Total
Sector
Number
Rusiga
Shyorongi
Cyabingo
Rushashi
Gacaca
Muhoza
Bungwe
Nemba
Byumba
Mutete
61
59
63
63
60
61
63
63
63
63
619
Source : Elaboration by the authors June 2010.
Table N° 10: Sample of respondents in the Eastern Province
District
Rwamagana
Nyagatare
Gatsibo
Kayonza
Kirehe
Ngoma
Bugesera
Total
Sector
Musha
Nyakariro
Kiyombe
Matimba
Kabarore
Kiziguro
Gahini
Mwiri
Kirehe
Nyarubuye
Rukira
Zaza
Ntarama
Nyarugenge
Number
60
63
42
30
50
55
62
35
63
52
63
63
61
63
762
Source: Elaboration by the authors, June 2010.
57
Since the questionnaire does not capture all the nuances of action as complex
as conducting a huge number of diverse trials, we supplemented the data
obtained by in-depth interviews of the players who were best informed about
the situation that prevailed in each jurisdiction. Their choice was guided
by the technique called “snowball” or “chain” in the meaning of Miles &
Huberman26. This technique is to be phased in the sample, the players
indicated by contact persons holding rich and nuanced information likely to
complement the quantitative data from the survey.
Although the views of stakeholders in the process of Gacaca courts were
judged paramount as seen in the above-defined various observation indicators,
we noticed they were not sufficient to determine the degree of achievement of
various objectives assigned to Gacaca courts. In other words, every nuance and
every detail sought could not be captured by the questionnaire and interview.
This was the case for example, with indicators related to the first objective
(access to truth), the second objective (acceleration of the trial) and the third
objective of the Gacaca (fight against impunity). The data obtained using
the questionnaire and interviews were supplemented by analysis of archived
trials, including the attached analysis sheet.
Given the number of files that were archived in the documentation center of
the Gacaca courts, we chose a random selection of a trial out of 300, which
gives a sample of 1460 first level trials, 201 appeal hearings and 1723 trials
related to property.
This proportion (1/300) was dictated by the sake of feasibility, for the analysis
of a case is a fairly arduous work which includes: determining the nature of the
crime, identifying the culprits, the definition of conditions under which they
committed their crimes, analyzing the circumstances that led to their arrest
and those that allowed the emergence of the truth, considering the judging
process, as well as the match between the sentence and the nature crime.
As for the selection of files analyzed, it was guided by the random sampling
technique, stratified by the proportion of cases from each district.
26
Miles B.& Huberman M. (2003), http://www.amazon.co.uk/Qualitative-Data-AnalysisExpanded-Sourcebook/dp/0803955405.
58
CHAPTER II
CONTRIBUTION OF GACACA PROCESS IN REVELATION OF
THE TRUTH ABOUT THE CRIMES COMMITTED DURING THE
GENOCIDE
2.1. Introduction
The first mission assigned to Gacaca courts was the revelation of the truth
about the crime of genocide and other crimes against humanity committed
during the period extending from 1st October, 1990 to 31st December, 1994.
Though from the start, most observers acknowledged the potential benefits
that Gacaca courts would bring, to some, on the contrary, it was thought that
these courts constituted some kind of disguised amnesty and so, the accused
and their families would not favour the emergence of the truth.
Others would even advance that these popular courts were simply introduced
as a way to blame all Hutus. There was thus at the outset, a skepticism about the
ability of this process in as regards the revelation of the truth. However, though
faced with such criticisms and this reluctance, the initiators of the process
of Gacaca courts had nevertheless, the hope that its public and participatory
nature would overcome such obstacles to the revelation of truth.
2.2. Meaning of the concept of truth under this research
Generally, the concept of truth (from Latin word ‘veritatem”, accusative
of veritas, “truth”, derives from verus, “true”) that refers to the quality of
what is true. It also denotes the compliance of the idea with its object. In this
perspective, the term refers to objective facts from which we can derive the
existential proof.
59
But as Verdaja27 clearly puts it, to recount the crimes committed is not sufficient
to initiate a process of genuine reconciliation in post-conflict situation because
the protagonists may attribute different meanings to it. It has been noticed for
example that at the beginning of the gacaca process, many prisoners released
after having confessed of their crimes their tendency was to attribute the first
responsibility to the genocidal government. For many survivors, this was
interpreted as lack of repentance on the part of these criminals.
If we were to put ourselves in the perspective of the author mentioned above
in as regards the particular “narrative truth”, the concept of truth is understood
as the result of a deep examination of conscience, which is not limited to the
narration of the facts but also goes further and creates in the survivor a belief
that there was a sense of sincerity and regret from the one narrating the facts.
The truth in the sense of Verdeja therefore takes into account the public
recognition of the crimes committed in the past and goes beyond the
physical evidence. It includes testimonies from the congregation engaged
in a process of collective resilience in the face of genocide consequences.
The indicators of this concept are, among others, the items of the information
collection sheet, which include: the identification of those who planned, those
who organized, who drew up lists of people to be killed, those who distributed
murder weapons, those who set up barriers, those who participated in the
killings inside or outside of each cell, those who were killed because they
refused to participate in the genocide, the places where were laid the bodies
of the victims, the nature of the death of each victim, etc.
2.3. Problem of access to the truth after genocide
The unity and reconciliation of Rwandans rely on a pillar which is none than
“justice for all”. But this justice would only be real insofar as the truth about
what happened is established. The thirst for the truth about what happened
during the 1994 genocide against Tutsi therefore became a prerequisite to the
justice for unity and reconciliation in Rwanda.
Verdeja, E., Unchopping a three. Reconciliation in the aftermath of Political Violence,
Philadelphia, Temple University Press, 2009.
27
60
But how would this truth be revealed, considering the massive participation
of thousands of ordinary citizens in this endeavor of exterminating and how it
touched every corner of the country? Moreover, it is impossible to rely solely
on information provided by the survivors, since they were all in hidings during
the genocide. Since the killers proudly operated in broad daylight, the only
opportunity to have this truth clearly revealed was to involve local people in
gathering information, and conducting the trials since they are the ones who
witnessed the atrocities being committed and so, would easily contradict the
lies put forward by the accused.
Given the magnitude and ramifications of family killings that had left
very few families not notified, the logical consequence would then be the
collective guilt that taints even the innocent ones. The corollary of course
has been concealing the truth about what was done by relatives. It is within
this context of collective malaise that occurred during the pilot phase of the
Gacaca process.
2.4. Contribution of the Gacaca process in identifying criminals
Making known the truth about what happened during the genocide was one of
the most urgent requirements assigned to Gacaca courts from the beginning,
the reason being that unity and reconciliation would be almost impossible if
responsible for the crimes committed were not clearly established.
Thus, the first mission of the Gacaca courts at the cell level was to bring out
the truth about what happened between October 1, 1990 and December 31,
1994. Indeed, the law stipulated that the General Assembly of the Gacaca “at
the cell level” collects information about: (a) those who died in the cell, (b) the
plaintiffs in each household who resided in the cell and has suffered damage,
and (c) persons who have committed genocide in the cell. With Gacaca courts,
therefore, truth about the accused, the victims, survivors, and the persecution
of any act in connection with the genocide was expected to be revealed.
61
2.4.1. Legal framework for categorizing the perpetrators of genocide
As for the perpetrators of genocide, Article 9 of Organic Law Nº 13/2008
of 19/05/2008 modifying and complementing Organic Law No. 16/2004 of
19/6/2004 establishing the organization, powers and functioning of Gacaca
courts, prosecuting and trying the perpetrators of the crime of genocide and
other crimes against humanity committed between October 1, 1990 and
December 31, 1994, states that the accused may be classified in either of the
following categories:
First category:
1. Any persons whose criminal acts or criminal participation place
them among the planners and organizers of genocide or crimes against
humanity and their accomplices;
2. Any person who, acting in authority at the national and prefectural
administrative structures in the state, political parties, army, gendarmerie,
religious denominations or militia, has committed the crime of genocide
or other crimes against humanity or encouraged others to commit, and
their accomplices;
3. Any person whose criminal acts or criminal participation place among
the instigators, supervisors and leaders of the crime of genocide or crimes
against humanity and their accomplices;
4. Any person who, acting in authority at the sub-prefecture and
commune in the administrative structures of the state, political parties,
army, gendarmerie, communal police , religious denominations or
militia, has committed crimes of genocide or other crimes against
humanity or encouraged others to commit, and their accomplices;
5. Any person who commits the offense of rape or sexual torture and
their accomplices
62
Second category:
1. All well-known murderer who distinguished themselves in their
place of residence or wherever they went because of the zeal that has
characterized the killings or excessive malice with which they were
executed and their accomplices;
2. Any person who committed acts of torture even though the victims
have not died and their accomplices;
3. Anyone who committed dehumanizing acts on corpses and their
accomplices;
4. Any person whose criminal act or criminal participation place
among the authors, coauthors of intentional homicide or of serious
assault against the person causing the death and their accomplices;
5. Any person who, with intent to cause death, caused injuries or
committed other serious acts of violence but of which the victims have
not died and their accomplices;
6. Any person who committed other criminal acts or criminal participation
to the person without intent to kill and their accomplices
Third category: Any person who only committed offenses against properties.
While the Gacaca courts were not given jurisdiction to try all the accused
under the first category including planners and organizers of the genocide,
the truth about their actions was mainly expected from their process. It is
therefore necessary to ask to what extent Gacaca courts were able to achieve
this goal.
63
2.4.2. Impact of the Gacaca process in identifying planners
and organizers of the genocide at national level
It should be noted that as regards the planners or organizers of the genocide,
Gacaca courts were only limited to gathering information and then submit
their files to either the competent ordinary courts or military tribunals. Article
1 of Organic Law No. 13/2008 of 19/05/2008 modifying and complementing
Organic Law No. 16/2004 of 19/6/2004 establishing the organization,
competence and functioning of Gacaca courts, provides that persons whose
acts place them in the first category, points 1 and 2 as defined by Article 9
of the Organic Law, should be amenable to the ordinary courts or military
tribunals which apply the common rules of procedure.
It should be recalled that it is in this first category that the planners and
organizers of genocide or other crimes against humanity were classified.
The diagram below shows the quantitative data obtained regarding this
component.
Diagram No. 1. Access to the truth of planners and organizers at
national level
Source: Survey of the CCM, December 2010
64
It appears from the above diagram - that 26.7% of respondents consider that
the role of the Gacaca courts in identifying the planners and organizers of the
genocide was excellent and 48.9% consider it very well. 7% of respondents
felt that this role has been satisfactory. In total, 82.6% positively evaluate the
contribution of Gacaca courts in the revelation of truth under this important
indicator.
Indeed, it is here that we can discuss the significant role played by guilty
pleas, as to the highlighting of the decisions taken in the various genocide
organizational meetings. It is worth mentioning here about the formal
communication chain that existed between planners based mainly in Kigali,
and the organizers on the field, who were distributed throughout the country.
Only 1.8% of respondents expressed the view that this role was not satisfactory
because some refused to give key information about the premeditated nature
of the genocide. Among them - they found mostly former political leaders and
opinion leaders but also among the intellectuals. 11.5% said they had not seen
any planned character of the genocide, while 4.1% preferred not comment.
A comparison between sites, however, allows to go beyond general trends
and to show that all sites would not represent the same configuration.
Through the advanced justifications realize that the sites where there were
a few survivors as for example in Rushashi Gakenke District and Sovu in
Ngororero District, people have successfully managed to conceal the names
of those persons who organized the killings. They merely confirmed the facts
revealed by the prisoners who confessed their crimes. A similar tendency of
not revealing what they knew about the genocide was also noted among the
judges “Inyangamugayo” themeselves. Some of them would even deny the
planned character of the killings.
In urban areas such as Jali, Gikondo, Kicukiro and Nyakabanda of the City
of Kigali, the identification of planners was quite cumbersome for local
judges. This was because most killings were carried out by senior officers,
both from the army and the police who were not known by the inhabitants
of the said cells. This was the same with sites where gross massacres were
committed such as at Bisesero, Ntarama, Kabgayi and Nyarubuye. In fact, the
65
killings were organized from long distances, murderers being transported in
buses and trucks to such remote cells. These data corroborate with the initial
observation of United Nations observers headed by Mr. Rene Degni Segui,
which concluded that genocide was a result of a plan.
2.4.3. Contribution of the Gacaca process in identifying field organizers
By field organizers we mean three categories of actors: those who have
established lists of people to be exterminated, those who distributed murder
weapons and those who set up roadblocks. This point is consistent with the
previous one since the three activities were a result of a well organized plan.
Thus, it was expected that Gacaca courts would contribute to the revealing
of the truth about organizers and supervisors of the genocide. The numerical
results concerning this aspect are presented in the following diagrams:
Diagram Nº 2: Access to the truth about the listing of the people to be
exterminated
36.20%
24.00%
19.90%
8.10%
8.40%
Don'tknow
Noanswer
3.40%
Excellent
VeryGood
Good
Bad
Source: Survey of the CCM, December 2010
66
Concerning this point, 19.9% of respondents said that the role of the Gacaca
courts in identifying people who prepared lists of people to be exterminated
was excellent. 36.2% say that this role has been very well served, while 24%
consider it satisfactory. In total, 80.1% of respondents said that Gacaca courts
have managed to unmask the organizers and field supervisors, because they
operated openly and that they were known locally.
Only 3.4% of respondents said that Gacaca courts have encountered difficulties
in identifying key players. Except for a few sites where there were virtually
no survivors to tip the balance of the testimonies, in other sites visited, the
explanation in this regard was that the lists of victims had been established by
local administrative authorities and militia leaders, with the help of neighbors
who were very familiar with each member of the family targeted.
Regarding the identification and distribution of weapons and those who gave
orders to set up roadblocks, the chart below shows the quantitative results
obtained:
Diagram N° 3 : Access to the truth on those who distributed weapons
38.00%
23.00%
22.10%
10.00%
Excellent
VeryGood
Good
4.00%
2.90%
Bad
Don'tknow
Source: Survey of the CCM, December 2010.
67
Noanswer
As can be seen from the diagram above, 22.1% said that identifying the
distributors of the murder weapons was excellent. 38% say that the Gacaca
process has played its role very well, while 23% found it satisfactory.
The dominant argument is that this action was often done during public
meetings.
In total, 83.1% of respondents said that Gacaca courts have contributed to
revealing the truth about the distribution of weapons for genocide. Only
4% think that this role has not been performed satisfactorily, for the early
weapons were distributed secretly. 12.9% do not have an opinion on this or
did not know much.
Diagram N° 4 : Access to the truth on those who gave orders
29.80%
27.00%
25.00%
9.70%
3.60%
Excellent
VeryGood
Good
Bad
4.90%
Don'tknow
Noanswer
Source: Survey of the CCM, December 2010.
As shown in the above diagram, 27% of respondents said that the contribution
of Gacaca courts in identifying those who gave orders to set up barriers for
genocide was excellent. 29.8% felt that this role was played very well, while
25% consider it satisfactory. In total, 81.8% say that Gacaca courts were able
to identify contractors locally.
68
Note that this information was readily available because the roadblocks were
a sort of continuation of night patrols which were the responsibility of local
leaders at cell level. As all people were involved in these patrols before and
during the genocide, the identification of persons responsible for roadblocks
and their orders emerged at the time of collecting information on how the
genocide unfolded in each cell.
Thus, it can be said that by introducing the voluntary confessions and guilty
plea procedure, the Gacaca process has greatly facilitated access to the truth.
Indeed, it would suffice for a few organizers at a given site to actually plead
guilty that judges would easily backtrack and show the workings of the
machine organizers which had worked at each site.
It can be argued that the 3.6% of respondents who said that the Gacaca
process has failed to uncover those who gave orders to set up roadblocks,
was basically due to the fact that the secrecy of the organization of genocide
was well kept by the authorities and their close associates. Indeed, when local
authorities and those responsible for roadblocks chose not to plead guilty
or to remain silent, the information on actual organization, supervision and
guidance of the genocide were difficult to obtain.
2.4.4. Contribution of the Gacaca process in identifying the performers
genocide
In the category of participants are those who manned roadblocks where the
crimes took place and who participated in the hunt for Tutsis, inside and
outside each cell. One of the most difficult tasks that were expected of Gacaca
was the identification of thousands of genocide performers; since they were
in all spheres of society. In the diagram below, we present the results obtained
by Gacaca about identification of the people who committed crimes on
roadblocks set up in all cells across the country.
69
Diagram N° 5 : Contribution of Gacaca process in identification of
persons who committed crimes on roadblocks.
32.60%
26.70%
23.00%
10.50%
5.10%
2.10%
Excellent
VeryGood
Good
Bad
Don'tknow
Noanswer
Source: Survey of the CCM, December 2010.
This diagram shows that 26.7% of respondents said that Gacaca courts
excellently identified the people who committed crimes on roadblocks,
while 32.6% think that this role was played very well and 23% said that this
contribution has been satisfactory. The proportion of respondents who say
that in total the Gacaca courts have positively contributed to revealing the
truth about this indicator is 82.3%.
As all adult people were required to participate in the night patrols and man
the roadblocks, at the beginning of the Gacaca process, people tended to hide
the crimes that were committed for fear of being held as accomplices. But after
the judges said that only those who committed crimes would be prosecuted
under the law, the rest of the population broke away with criminals and the
truth about this has come to light.
As can be seen, only 2.1% of respondents believe that this contribution
has been unsatisfactory. It should be noted that 5.1% said they did not hold
relevant information on this aspect, while 10.5% did not comment.
70
Regarding the identification of those who participated in the attacks and
hunt for Tutsis inside each cell, the results achieved by the Gacaca courts are
presented in the following diagram:
Diagram Nº6: Contribution of the Gacaca process in identification of the
genocide perpetrators at cell level
32.30%
27.00%
24.20%
5.50%
Excellent
VeryGood
Good
Bad
6.70%
Don'tknow
4.30%
Noanswer
Survey of the CCM, December 2010
It appears that 24.2% of respondents rate as excellent the contribution
of Gacaca courts in identifying genocide perpetrators in each
cell, while 32.3% said that this contribution was very good, 27%
being of the view that this contribution has been satisfactory.
So in total, 83.5% said that Gacaca served to reveal a large number of
criminals who made it possible the implementation of the genocidal plan
of the entire national territory. Given the abundant information collected on
crimes committed and the number of people involved, no any other justice
system would achieve similar performance.
71
Only 5.5% think that the Gacaca process could not identify all
the persons who participated in the genocide due to the massive
participation of thousands of citizens. 6.7% had no relevant
information, while 4.3% of respondents did not comment on that aspect.
In light of the above data, the Gacaca courts have played an important role
in revealing the truth about the execution of the genocide in each cell. They
have exposed the ramifications of genocide and emerged from the individual
responsibility of those who participated in the genocide. This efficiency was
mainly due to their participatory and decentralized nature.
In most sites visited, the first indications were mostly given by the prisoners
who confessed their crimes. Then the survivors, witnesses and residents of
each cell have completed the missing links, so that in most sites, the performers
who operated within their cells of origin were mostly known. But what about
those performers who overflowed the limits of their cells or sectors? The
diagram below shows the results obtained on this aspect:
Diagram Nº7: Access to the truth about those who committed genocide
in other cells
32.10%
29.00%
19.10%
10.20%
Excellent
VeryGood
Good
4.50%
5.10%
Bad
Don'tknow
Source: Survey of the CCM, December 2010.
72
Noanswer
This diagram shows that 19.1% of respondents said that the contribution
of the Gacaca process in revealing the truth about those who committed
genocidal acts in other cells is excellent. 32.1% say the truth about this has
been very satisfactory, while 29% consider it satisfactory. In total, 80.2% of
respondents felt that the Gacaca courts identified most of the criminals who
operated outside of their cells of origin. The truth of this has mainly been
obtained from joint trials; i.e. trials which involved several defendants for
they operated together.
Only 4.5% of respondents believe that the contribution of Gacaca on this
aspect has not been satisfactory, while 5.1% of respondents said they did not
learn much and 10.2% did not answer the question.
2.5. Contribution of the Gacaca process in identifying victims of
genocide
It was expected that Gacaca courts would reveal the truth about the perpetrators
of genocide and thereafter, systematically identify all the victims killed inside
and outside each cell, the nature of their death, and the places where their
bodies were thrown. The results, in this regard, are presented in the following
sections:
73
2.5.1. Contribution of Gacaca process in identification of victims killed
within their Cells of origin
Diagram N º8: Contribution of Gacaca process in identifying victims
39.40%
24.20%
18.20%
7.30%
Excellent
VeryGood
Good
Bad
5.20%
5.70%
Don'tknow
Noanswer
Source: Survey of CCM, December 2010.
From the analysis of data collected, 39.4% said that the Gacaca process has
successfully and excellently identified the victims who fell in their cells of
origin. 24.2% believe that this mission was carried out very satisfactorily,
while 18.2% describe it as satisfactory. 81.8% of total respondents stated
that the Gacaca courts have properly discharged the mission of identifying
the victims of the genocide killed in their cells of origin. A proportion of
7.3% reported that this role has not been satisfactorily assumed, because the
whole truth about the victims has not been revealed following the refusal of
some defendants to provide information relating thereto. 5.2% of respondents
said they had no tangible information on this aspect, while 5.7% gave no
response.
74
In addition to identifying the perpetrators of killings on every hill, another
substantial contribution of the Gacaca process was the identification of victims
and places where their bodies were thrown. It should be noted however, that
this has not been possible in sites near waterways such as lakes, large rivers
like Nyabarongo, Akanyaru and Akagera for example, given the nature of
these places. Indeed, victims’ bodies have been washed up, sometimes even
to neighboring countries like Uganda.
2.5.2. Contribution of the Gacaca process in the identification of victims killed
outside their cells of origin
Upon learning of the nature of the planned and systematic extermination that
was going to befall on them, some victims tried to break the stranglehold
tightened against them and tried to seek refuge with relatives or friends living
far from home. Others did everything possible to reach places supposed to
command respect such as churches. During our research, we investigated
whether the Gacaca process had revealed the truth about people who have
fallen away from home. The results thereof appear in the following diagram:
Diagram Nº 9: Revealing the truth about genocide victims killed in
other cells
33.00%
28.00%
19.10%
9.10%
Excellent
VeryGood
Good
5.80%
5.00%
Bad
Don'tknow
Source : Survey of CCM, December 2010.
75
Noanswer
It appears from the above diagram that 19.1% of respondents said that
the role of the Gacaca courts in revealing the truth about the genocide
victims killed in other cells has been very good, while 28% consider
it very well and 33% believe that this role was assumed satisfactorily.
Thus, in total 80.1% of respondents say that these courts have contributed to
revealing the truth about the genocide victims killed in other cells. Only 5.8%
of respondents said that Gacaca courts have not achieved the desired results
on this aspect. Note that only 5% said they knew nothing while 9.1% did not
comment on that aspect.
It should be noted however that such information remained largely dependent
on admission of guilt on the part of prisoners, because these people have fallen
in places where people did not know them. In absence of real confessions or
other testimony on this aspect, many facts were ignored by prisoners anxious
to “carve out a guilt-measure” to get reduced sentences.
2.5.3. Contribution of the Gacaca process in the identification of victims
killed on barriers
As can be seen through the analysis of the process of information gathering, it
was also expected that Gacaca courts would identify the victims killed on the
various roadblocks set up during the genocide. The results thereof are shown
in diagram shown below
76
Diagram Nº 10: Identification of victims killed on roadblocks
35.60%
27.00%
17.70%
10.30%
5.60%
3.80%
Excellent
VeryGood
Good
Bad
Don'tknow
Noanswer
Source : Survey of CCM, December 2010.
It appears from the above diagram that 17.7% of respondents said that the
Gacaca process has excellently identified the people killed or persecuted
on barriers. 35.6% felt that this role was played very well, while 27% agree
that such courts have played this role satisfactorily. It appears that in total
80.3% of respondents believe that the Gacaca process has contributed to
revealing the truth about the victims killed and persecuted on the roadblocks.
From the above diagram, 3.8% think that this role was not played properly.
Note that 10.3% of respondents said they know nothing about it, while 5.6%
gave no response. Roadblocks were not only used to encircle the victims
living in each cell, but also to identify those who managed to escape the
assassins from their cells of origin.
77
2.5.4. Contribution of the Gacaca process in the identification of victims
killed due their refusal to participate in genocide
In addition to revealing the truth about Tutsi victims, it was also expected
that the Gacaca courts would contribute to revealing the truth about nonTutsi victims killed for refusing to participate in the genocide or for giving
refuge to Tutsis. Below is the diagram with this data:
Diagram Nº11: Revealing the truth about the victims who refused to
participate in the genocide
52.00%
16.40%
12.90%
9.30%
3.60%
Excellent
VeryGood
Good
Bad
Don'tknow
5.80%
Noanswer
Source : Enquête du CCM, décembre 2010.
It is clear from this diagram that 16.4% of respondents said that the Gacaca
process has excellently revealed the truth about people killed for refusing
to participate in acts of genocide, while 12.9% and 52% respectively think
that Gacaca process has been very instrumental in identifying this category
of victims. It appears that in total 81.3% of respondents felt that the Gacaca
process has contributed to revealing the truth about the victims killed for
refusing to participate in the genocide. 3.6% of respondents show that this
78
role has not been performed satisfactorily, while 9.3% said they did not to
know of cases where people who were not Tutsi were killed because they
refused to be part of the genocidal enterprise.
Particularly, it was revealed that very few people have openly displayed such
behavior of non-adherence. Most of those who did not adhere to the idea of
exterminating the Tutsis chose to operate secretly, hiding as best as they could
a few people hunted, and occasionally bribing militia to prevent them from
conducting searches at their home.
2.6. Contribution of the Gacaca process in identification of massacre
sites and where the victims’ bodies were dumped
As shown in the two charts below, the truth about massacre sites and places
where the victims’ bodies were thrown, were also be revealed during the
Gacaca courts.
Diagram 12: Revealing the truth about the identification of sites of
massacres
38.60%
25.00%
23.00%
2.70%
Excellent
VeryGood
Good
Bad
Source : Survey of CCM, December 2010.
79
5.60%
5.10%
Don'tknow
Noanswer
The above diagram shows that 23% of respondents said that Gacaca courts
were able to identify massacre sites so excellently, while 38.6% believe
that this role was very well covered. A proportion of 25% is the average
position considering that this role has been well served. So in total, 86.6% of
respondents believe that these courts have contributed to revealing the truth
about the massacre sites. Only 2.7% think that this role was not properly
insured, while 5.6% say they know nothing and only 5.1% have not spoken
about it.
Diagram N° 13: Revelation of the truth about places where victims’
bodies were thrown
36.00%
22.70%
23.60%
13.00%
3.10%
Excellent
VeryGood
Good
Bad
1.60%
Don'tknow
Noanswer
Source : Enquête du CCM, décembre 2010.
The diagram shows that 22.7% of respondents said that the Gacaca process
has revealed the truth about where the victims’ bodies were dumped in an
excellent manner. 23.6% say that the Gacaca process has very well fulfilled
its fundamental role, while 36% believe that this role was fairly assured. It
appears that in total 82.3% of respondents felt that the Gacaca process has
contributed to revealing the truth about places where the bodies of the victims
were thrown. 3.1% of respondents say that this role was not properly played,
while 1.6% said they knew nothing about this and 13% gave no response.
80
It is important to note that the revelations of the Gacaca process on where
the genocidal massacres were committed and where the bodies of the victims
were thrown, greatly contributed to the incessant desire of survivors to give
a decent burial to their deceased relatives and friends. Given the above, it
can be concluded that the identification of places where the bodies of victims
were thrown is was one of the substantial contributions of the gacaca process.
Note however that at certain sites where there has been insufficient evidence
on this aspect, truth was ignored. Such were sites like those near lakes and
large rivers, as mentioned earlier.
Regarding the identification of the nature of the turtles suffered and tools
used, the results thereof appear in the following diagram.
.
Diagram N° 14: The way in which the victims were killed
29.40%
28.00%
24.00%
8.90%
4.00%
Excellent
VeryGood
Good
Bad
Don'tknow
5.70%
Noanswer
Source: Survey of CCM, December 2010.
It is clear from this diagram that 29.4% of respondents say that the Gacaca
process has played the role of revealing the truth about how the victims
were killed in an excellent manner. This percentage also applies to tools and
inhuman acts that the killers did to the victims. 24% say that this role was
very well covered; while 28% take a measured position by saying that this
81
role has been well done. It is therefore 81.4% of respondents in total, who said
that Gacaca courts have played a positive role in revealing the truth about this
key indicator of access to truth about the way the victims were killed. 8.9%
think that this role was not properly carried out, 4% said they know nothing,
while 5.7% did not express an opinion on this issue.
Note that the details describing the circumstances surrounding the death of
each victim were obtained primarily through guilty pleas, supplemented by
the accounts of eyewitnesses and survivors. This information is of paramount
importance, because the truth about the inhumane acts that the killers did to
the victims can help understand the dramatic nature of the genocide, and the
degree of malice that characterized it.
2.7. Contribution of the Gacaca process in identifying the “righteous”
At the launch of the Gacaca process, the Rwandan society hoped that following
these jurisdictions, the truth not only about the victims but also about the
protectors of the people who were hunted down during the genocide would
be known. The following diagram summarize it:
Diagram N° 15: Revealing the truth about “the righteous”
30.90%
27.00%
21.50%
10.60%
5.00%
Excellent
VeryGood
Good
Bad
Source: Survey of CCM, December 2010.
82
5.00%
Don'tknow
Noanswer
If we consider this diagram, we find that 30.9% of respondents think that
the role of Gacaca courts in revealing the truth about the people who hid the
hunted was excellent, 27% think that this role was very well played while
21.5% think that the Gacaca courts have played this role in an average manner.
So in total, 79.4% of respondents believe that these courts have contributed to
revealing the truth about the “righteous”, that is to say, people who took the
risk of hiding those who were hunted to be killed.
Note that, the information on this aspect has mainly emerged from stories of
survivors recounting their travels to escape the killings. A proportion of 5%
of respondents believe that this role was not properly accounted, while 10.6%
say they know nothing and that 5% does not have an opinion on this issue.
This information is very important considering the risks people who hid
Tutsis during the genocide were undertaking. This is considered a heroic
act, a sacrifice because at the end was certain death. The revelation about
those who hid people that were doomed to extermination is indeed a solid
foundation for reconciliation, because it negates the the generalization that all
Hutus were genociders.
In addition to the truth about people having hidden the hunted, it was also
expected that the Gacaca process would reveal the truth about places of
hiding. The following diagram deals with it.
83
Diagram N° 16: Highlighting of hiding places
27.60%
25.60%
26.00%
9.50%
8.10%
3.20%
Excellent
VeryGood
Good
Bad
Don'tknow
Noanswer
Source : Survey of CCM, December 2010.
Diagram Nº 16 shows that 27.6% of respondents said that the contribution of
Gacaca courts to revealing the truth about where the hunted were hiding was
excellent and 25.6% think that this role was very well played. 26% have an
average position in arguing that this role was played satisfactorily. In total,
79.2% said that the Gacaca process has identified places where Survivors were
hiding. 3.2% attest that this role was not properly played, while 9.5% said
they knew nothing whereas 8.1% of respondents gave no answer on that
With the massive participation of thousands of citizens in the genocide, finding
a hiding place was roughly equivalent to finding water in the desert. The Gacaca
process has nonetheless shown that such “oasis” existed despite the fact that
the “right” were subjected to intense pressures which eventually materialized,
particularly in the slogan: “Iyo inzoka yizingiye ku Gisabo urakimena” that is
“if a snake (symbol of Tutsi power in demonization propaganda) clings to the
most sacred, it is better to break the valuable thing rather than leave the snake
alone. Here the valuable thing symbolized the Hutu who tried to save Tutsi
from extermination machine.
84
2.9. Partial conclusion
As partial conclusion, let’s say that with regard to access to the truth, three
substantial contributions to the Gacaca process emerge clearly from our
results: first the Gacaca courts have played an important role in identifying
genocide planners, organizers and perpetrators; that is to say those who made
the genocidal plan operational.
In most sites visited, the first signs emerged especially from confessions of
guilt. Then the survivors, witnesses and residents of each complemented the
information collected, so that the unfolding of the genocide in each cell is
almost completely known.
Another substantial contribution of the Gacaca process is the identification of
victims and places where their bodies were thrown. This was possible thanks
to the testimony of the accused who pleaded guilty; confessions which were
complemented by those of survivors. It should be noted, however, that this
has not been possible in sites located close to watersourses such as lakes and
large rivers.
Regarding people who were killed far away from their places of origin,
the information obtained remained heavily dependent on prisoners’ guilt
confessions; because some people were killed in faraway places where local
people did not know the victims. We noted that in sites where there were no
survivors to give testimonies, a lot of such facts were ignored by prisoners,
anxious to confess guilt that would allow them to be given the reduction of
prison sentences.
Finally, the Gacaca process has identified the crime scenes and especially
where the victims’ bodies were thrown, as well as the conditions of the death
of victims. This aspect has greatly contributed to survivors more and more
increasingly willing to give a decent burial to their family members killed
during the genocide.
85
CHAPTER III
THE CONTRIBUTION OF GACACA COURTS TO THE SPEEDING
UP OF GENOCIDE TRIALS
3.1. Introduction
The speeding up of the trials of genocide crimes, as one of the outcomes
expected from Gacaca courts was carried out with due care in respect of the
legal rules governing a fair trial. To do this, a rigorous multi-step procedure
was applied to ensure speedy and qualitative justice, with the support of both
judicial and administrative structures.
For example, some tasks that played a major role in speeding up the genocide
trials were completed by the “Parquet” (now National Public Prosecution
Authority), while related measures were taken by the Government before the
actual start of trials. The same approach would be followed throughout the
process by the judges, local authorities, the population, the NSGC and other
stakeholders. This is why in this part of our work we will mention some of the
facts considered as tools that highly contributed during the Gacaca judicial
process. Without them speeding up of genocide trials would certainly not
have attained the same results within the same time frame.
In legal terms, the objective of speeding up trials, which was assigned to
the Gacaca courts, responded to the implementation of the right to be tried
without undue delay. However, concern for justice in a reasonable time was
not supposed to compromise the compliance with safeguards for fair trial as
set out in international instruments ratified by Rwanda. These are exactly
the same as those to be cited and discussed in the section devoted to the
fight against impunity. In terms of international instruments, the most relevant
instruments are contained in Article 14 of International Covenant on Civil and
Political Rights28 and Article 7 of the African Charter on Human and Peoples’
��������������������������������������������������������������������������������������
Adopted by the United Nations on 19 December 1966, the Covenant was ratified by Rwanda by Decree-Law No. 8/75 of February 12, 1975. Hereafter referred to as the Covenant
28
86
Rights29. Section 14 paragraph 3 point (c) of the Covenant sets forth the right
of any accused person “to be tried without undue delay.” Then, Article 7
paragraph 1 point (d) of the African Charter on Human and Peoples’ Rights,
enacted the same law stating that any person charged with a criminal offence
has the “the right to be tried within a reasonable time by an impartial court
or tribunal.” Since Rwanda had ratified the two international instruments, it
had to comply with them in the processing of genocide trials.
As for national texts, the applicable provisions to refer to are the Constitution of
the Republic of Rwanda, as well as Organic Law N°16/2004 of the 19/6/2004
establishing the organisation, jurisdiction and functioning of Gacaca
Courts charged with prosecuting and trying the perpetrators of the crime of
Genocide and other crimes against humanity committed between October 1,
1990 and December 31, 1994, as modified and complemented to date. The
preamble of that law clearly states that the handling of genocide cases was an
overriding need to carried out expeditiously with these words: “Considering
the necessity (…) to adopt provisions enabling rapid prosecutions and trials
of perpetrators and accomplices of genocide…”
3.2. The procedure and practical techniques used to speed up the trials
The choice made by the Legislature was to entrust the entire Gacaca process
to the judges from the local population and who are elected by the same
population, as well as a General Assembly constituted in the same manner.
In deciding to apply such a procedure, the legislature hoped that information
which would come from the population would make it possible to know much
of what happened during the Genocide and its real perpetrators and thus help
to determine individual responsibility for crimes committed alone or in gangs
and thus to be able try the suspects without them waiting for a long time. This
is the main reason why the Gacaca courts were perceived by some as informal
tribunals without the obligation to operate within a legal and procedural
framework as strict as that of ordinary courts.
Adopted by the Organization of African Unity (OAU) on 27 June 1981, the Charter was
29
signed by Rwanda on 11 November 1981 and ratified by Law No. 10/1983 of 17 May
1983. Hereafter referred to as the Charter.
87
It is in this context that the Rwandan legal authorities dealing with genocide
case files, especially the Public Prosecution and the NSGC in collaboration
with relevant administrative authorities used various practical techniques to
examine the feasibility of the process. It should be recalled here, that when
the Government of Rwanda made the decision to establish a specific system
for dealing with genocide and related crimes, there was no other model of
international justice from which it could get inspiration. It was an entirely
innovative project.
This explains the experimental procedure based on a prudent decision taken
by the Government to start with a pilot phase. A survey conducted in the
population as part of this evaluation showed that a combination of several
factors had contributed to the speeding up of trials. The views from the
interviews with citizens were structured around assessments summarized in
the box below:
88
Box: Recurring elements in the answers of respondents on the contribution
of Gacaca Courts in speeding up genocide trials
- Collaboration of all stakeholders including, the administrative
-
-
-
-
-
-
-
-
-
-
-
-
-
authorities, judges, the general public and witnesses in particular;
The procedure of confession, guilty plea and repentance;
The commitment of the Inyangamugayo judges of Gacaca courts who
worked several days a week;
Subdivision of Gacaca Courts activities, especially during the data
collection phase and that of trials;
In places where the collection of information was made properly,
speeding up trials was facilitated;
Inyangamugayo judges were well trained;
The sufficient number of members on the benches made it easier to attain
a quorum and instead of postponing trials;
Ownership of the Gacaca process by the people;
Judgments were made on the crime scene and in public;
Gacaca judges as members of the community had ways to get
information on the truth and the suspects were aware;
Security of the sessions was provided by relevant authorities;
Decentralization of Gacaca Courts in the cells and sectors;
Grouping of trials of suspects who committed the same crime;
Sensitisation of the people to participate actively in the Gacaca process
through the media;
Based on the opinions summarized above, the following sub-section focuses
on practices that contributed to the acceleration of the trials in compliance
with the law and the required quality of judgments.
89
3.2.1 Collaboration of various stakeholders in the preparation of Genocide
case files
From July 1997, the prosecution began the important phase of preparing case
files. This consisted of updating of incomplete files and creating new ones,
in order to regularise the situation of detainees. Some of these were then
presented to the people in the villages where they had allegedly committed
crimes. The population was to testify for the prosecution or the defence of
these suspects.
According to RCN Justice & Démocratie which oversaw and funded this
activity, 11,659 inmates for whom the prosecution had previously failed to
gather enough evidence to prove their participation in the genocide were
presented to the public at the end of December 2002. Following these
presentations, 2,721 of the accused, or 23.3%, were provisionally released
due to lack of evidence of their involvement in genocide crimes. The detained
suspects who were not released during this operation were to wait for their
appearance before the Gacaca courts30.
During this first phase, case files were identified, modified, completed or
compiled for up to 20,000 cases still had incomplete or non-existent case files;
thus legalizing the status of many detainees who were to be brought before
the ordinary courts (those of the first category), or before the Gacaca courts
for other categories31. These case files compiled by the prosecutors were later
used in the Gacaca courts for the speeding up of trials. This essential step
particularly facilitated the access to information and helped gather evidence
that was central to the prosecution or defence during the trials.
RCN, Tableau général des présentations 2001-2002, Kigali, January 2003.
Klaas De Jong, Recherche sur la pré-Gacaca, PRI, Kigali, February 2001.
30
31
90
3.2.2. The role of confessions, guilty pleas, repentance and seeking for
forgiveness in the acceleration of trials
The confessions and the guilty pleas made in prison played a central role
in the acceleration of the genocide trials. Toward the end of 2000, detained
suspects who wanted to take part in the procedure of confessions and guilty
pleas in order to receive reduced sentences were encouraged to do so during
the same period when prosecutor’s office was compiling the case files. Out of
the 20,000 detained suspects whose case files were identified, completed or
compiled at that time, 2,600 of them opted for the procedure of confessions
and guilty pleas. This was 13% of these cases, which is an encouraging figure
during a phase of compiling case files.
But it must be noted that by 1998, the initiative to obtain confessions had
already began in some prisons, including that of Rilima. Detained suspects
held their own Gacaca, in form of committees that gathered the confessions of
fellow detainees and recorded the information carefully. During this exercise,
detailed lists of victims, perpetrators and locations of crimes were drafted. At
Kigali Central Prison, the Gacaca Committee gathered 1,127 confessions of
8,000 detainees in a period of three years.
The detained suspects were grouped by geographic location and their results
were satisfactory. A study conducted in the urban commune of Kacyiru and
that of Bicumbi of rural Kigali relating to the facts gathered from these
confessions showed that they contained impressive details. Lists mentioning
the names of victims originating from these two districts were in fact drafted
basing on these confessions from the detainees. These lists contained details
of the events, but also listed those who were injured or raped during the
genocide. There were also lists of the names of the alleged killers, stating
the group to which they belonged, their leaders, the names of minors who
participated, the whereabouts of the perpetrators to date and the names of
people who could provide additional information32.
PRI, Summary Report on Gacaca-Pilot Phase 2002/2004, p.22.
32
91
By the end of December 2002, a third of the detainees had opted for the
procedure of confessions. The launching of Gacaca courts in 12 pilot sites
(June 2002) also led some detainees to confess, since 65% occurred within the
last six months of 2002. This increase was the result of intensive sensitization
conducted by the prosecutor’s office, informing detainees of the benefits
in opting for the procedure of confessions and guilty pleas. The effect of
this sensitization exercise was also reinforced by the presidential decree of
1January 2003.
The Presidential decree ordered the provisional release of detainees who had
already confessed to their crimes, the chronically ill, the elderly and those
who were minors at the time. With this measure, over 20,000 detainees were
released and sent to solidarity camps (Ingando) where they spent one month
before returning to their homes.
In the weeks that followed the presidential decree, the news about the planned
release of detainees generated a considerable number of confessions in the
prison population. This allowed for the gathering of the necessary information
about the crimes and their perpetrators in different parts of the country. These
confessions in turn, provided the Gacaca courts with access to the evidence
that helped in speeding up of many genocide trials. Using the data published
by RCN Justice & Democracy, the tables below indicate a rapid and gradual
increase in the number of confessions obtained during the last six months of
2002:
92
Table N° 11: Number of confessions 2001-2002
Prosecutor’s
office
Confessions
in 2001
Confessions in 2002
JanuaryJune
JulyDecember
JanuaryDecember
Total
2002
Kigali
4 876
1 200
7 884
9 084
13 960
Nyabisindu
4 438
9 573
14 011
14 011
Ruhengeri
224
128
3 033
3 161
3 385
Cyangugu
Total
5.100
5.766
20.490
26.256
31.356
%
16,3
18,4
65,3
83,7
100,0
Source: RCN Justice & Démocratie, General table of confessions 2001-2002,
Kigali, January 2003.
Table N° 12: Number of detainees per Province, who chose the confessions
procedure33
Province
Number of
Number of detainees
%
detainees
in who confessed as at
January 2003
December 31, 2002
Kigali City
17 141
3 130
18,3
Kigali-rural
6 925
2 883
41,6
Gitarama
17 228
5 669
32,9
Butare
19 718
7 380
37,4
Gikongoro
4 794
2 046
42,7
Cyangugu
5 799
1 202
20,7
Kibuye
6 884
3 772
54,8
Gisenyi
2 477
1 134
45,8
Ruhengeri
1 346
242
18,0
Byumba
and
3 430
431 +440
25,4
Mutara
Kibungo
15 727
4 100
26,1
Total
101 469
32 429
32,0
Source: RCN Justice & Démocratie, General table of confessions 20012002, Kigali, January 2003.
PRI, Study Report on Gacaca, Report IV.
33
93
The role of voluntary confessions in speeding up trials was mentioned at
all sites of the evaluation: « kwirega no kwemera icyaha ku bushake, cyane
cyane ubwirege bw’imfungwa, byihutishije imanza ndetse kuri banyirubwite
ndetse no ku bandi, kuko babaga batanze amakuru no kubanze kwemera»: /
(voluntary confession of crimes, especially those made by detainees, not only
contributed to speeding up their own trials but also of the trials of those who
had refused to confess because information about them had been given).
3.3. The different phases of implementing the Gacaca process and their
impact on speeding up trials
The speeding up of the process was facilitated by efforts and initiatives that
were undertaken during various phases of the Gacaca process which improved
the applicable legal framework and obtained the expected results of speeding
up the processing of case files.
3.3.1 Activities and lessons of the pilot phase
The Government first developed a pilot phase which was officially launched
on June 18th, 2002. This was a feasibility test of the Gacaca process. The
activities of this phase first covered 12 sectors which were then extended by
an additional 106 on November 25th of the same year. The main objective
was to ensure the obtaining of results after experimenting with the potential
difficulties.
The selection of these sites was based on two criteria aimed at conducting
an evaluation under optimum conditions. The first consideration was that
the selected had a number of confessions that was above the average. The
second consideration was the availability of the necessary infrastructure to
accommodate sessions and the storage of records. The combination of these
elements contributed to an effective legal experiment.
The pilot phase comprised a total of 751 Gacaca courts at cell level which
were selected to undertake the considerable preliminary task of gathering
94
information and compiling the first case files. In 2004, after two and a half
years of gathering information, the pilot courts completed the task assigned
to them.
The lessons learned from this phase led the parliament to reorganize and adapt
the Gacaca process in accordance with the facts that were uncovered in the
field. Thus, Law No. 16/2004 of 19/06/2004 was passed to replace the law of
2001. The four categories that were determined by the original Gacaca law of
2001 were slightly amended. The second and third categories were merged
leaving only three categories of criminals instead of four.
After completion of the pilot phase, there was the problem about how to
manage the nationwide phase of information gathering while conducting trials
at the pilot sites because these sites had already completed their information
gathering. There were two possible choices: either these sites could wait for
all the Gacaca courts nationwide to complete their information gathering and
recording of accusations so that the trials may begin at same time throughout
the country, or the national phase of gathering information could be conducted
at the same time when the trials at the pilot courts are taking place.
Finally, the second option was considered, the launch of the nationwide
information gathering starting on 15th January, 2005, and the start of trials at
the pilot courts on March 10th, 2005. At that time, the trials only involved the
case files that had already been compiled at the 118 sectors of the pilot phase,
that is, 118 sector Gacaca courts and 118 Gacaca Courts of Appeal.
The justification for this choice was the need to speed up the trials as already
mentioned above. The NSGC was of the view that this option offered to the
people who had participated in the pilot phase the advantage of not having
to wait too long for the trials to begin, especially because at the time it could
not be predicted how long the information gathering at national level would
take. To facilitate the implementation of the trials, the NSGC organized a
new training session for Inyangamugayo judges relating to the phase of trials
to supplement the training they had received in 2002 after the creation of the
Gacaca courts.
95
The national phase of information gathering lasted between January 2005
and June 2006, in the vast majority of the cell level Gacaca courts. The phase
of trials was launched on July 15th, 2006 on a national scale. Between March
10th, 2005 and July 14th, 2006, 7,015 trials were concluded by the sector level
Gacaca courts and courts of appeal at the pilot sites34.This result obtained
within a period of one year and a half was an encouraging portrayal of the
ability of Gacaca courts to speed up genocide trials, given the fact that ordinary
courts tried an average of 1,000 people per year.
3.3.2. Positive impact of nationwide data collection on speeding up trials
Almost all respondents to the surveys confirmed that after the data collection
phase had been conducted well, the trials were quick and easy. Information
gathering was a very important part of the legal function of the Gacaca courts.
This phase quickly brought together the necessary evidence and accusations
without which trials could not be conducted.
The priority objective and approach of the information gathering was aimed at
not missing any information. The strategy that was implemented involved the
encouragement of as many people as possible to participate in the information
gathering sessions. This was used to maximize the chances of obtaining
comprehensive testimonies so as to establish indictments based on real facts
and to try the accused within a reasonable period of time.
Note that during the pilot phase it was the Inyangamugayo judges who were
gathering the information. During this period, it was found out that the
participation of the population was insufficient and there was need to make
more active and intense sensitization35. For the launching of the nationwide
phase of information gathering in January 2005, the NSGC made amendments
to the procedure used, taking into account the difficulties identified during the
pilot phase36.
NSGC, Report on the pilot phase, 2005.
NSGC, Annual Report 2003 and Annual Report 2004.
36
NSGC, Annual Report of activities January – November2005 ; Quarterly Report of
34
35
Activities January – June 2006.
96
Thus, it was decided to involve grassroots authorities even more, starting
with the smallest administrative unit of the time known as “Nyumbakumi”,
and the coordinators of cells and sectors. The mission was to sensitize the
public to be more involved in the information gathering, but also to motivate
them to provide reliable information and motivate the suspects to confess
their crimes.
In the implementation of this new formula, the “Nyumbakumi” supervised by
the cell coordinators, were assigned the task of gathering information from
people within their constituencies. This information was recorded in registers
that were provided for that purpose. The “Nyumbakumi” then submitted
these registers containing the information to the chairperson of the cell level
Gacaca court. Validation of the information was done at a general assembly
of the jurisdiction.
This procedure, which enables grassroots local authorities to support local
coordinators of the NSGC in the cells and sectors, was criticized by some
NGOs though. They challenged its legitimacy stressing that the law of 19
June 2004 did not provide for local government authorities involvement in
the judicial functions of information gathering.
As for us, we realized that without the contribution of grassroots authorities,
the phase of information collection at the “Nyumbakumi” level would not
have achieved the desired results of putting together all the facts starting from
the crime scene. We are quite aware that their involvement could cause some
slip-ups, especially at the beginning of the Gacaca process, but the NSGC
often anticipated the risk of malfunctions.
The other problem which was noted was related to ways of encouraging
the population to participate effectively. Given the low participation of
the population in the general assemblies, whose quorum of 100 people
could only be attained with difficulty in certain areas, many of the meetings
were postponed. Local authorities sometimes had to suspend all activities
(administrative, commercial, etc), on the days of holding Gacaca court sessions
as provided in Article 29 of the Organic Law governing those courts.
97
Using the local government structure produced clear benefits. It achieved
tangible results in the collection of information, without which the speedy
trial would not have been possible37.
According to Penal Reform International, it was found out that the involvement
of local authorities was clearly positive, given the large number of facts
revealed in a very short period of time38.
Ultimately, without the participation of the grassroots local authorities in
sensitizing the citizens, the first steps of the Gacaca process would have been
handicapped by the poor participation of the population. Lastly, it is important
to stress that at the stage of data collection, Inyangamugayo judges did not
have any role related to trials. This contributed much to reassuring the people
about the fact that they had nothing to fear about the trial.
Overall, this step was a crucial point in the Gacaca process because it provided
an opportunity for people to sit together and learn to speak freely before the
start of the main phase of trials.
3.3.3. The effects of data validation on speeding up of genocide trials
The procedure set up by the NSGC to validate the information gathered was
instrumental in speeding up trials. The NSGC set forth the validation rules,
in terms of their objectivity, to improve the reliability of information used in
the judgments. A reminder of the essential modalities adopted is necessary at
this stage of work.
The Procedure Manual concerning the collection of information was developed
in November 2004 by the NSGC. It set forth the rules for the validation of
information collected in order to reduce as much as possible any falsification
of the facts. The document stated that after the period of information gathering
by “Nyumbakumi,” coordinators, it did not become final until it had been
37 PRI, Report on Monitoring and Research on Gacaca: information gathering at national
phase, June 2006.
38 PRI, Report on Monitoring and Research on Gacaca, June 2006, p.16.
98
validated by the general assembly of the Cell. The act of validating itself was
based on agreement with the contents of notebooks of testimonies given by
the community during data collection.
The findings of “Nyumbakumi” were read fully and openly before the people
in a general assembly of the Cell. If there were additions or amendments to
be made, they were recorded by the secretaries of the sessions. After this, the
records were considered approved and therefore validated. This was followed
by the task of registration and organization of the information in registers
reserved for this purpose. The individual indictments were then established
on the basis of elements contained in such records, which should take into
account all means of available evidence and testimonies incriminating or
exonerating the alleged offenders39.
Sometimes, the period for preparing case files for the accused was only one day for
courts such as, for example, in Cyabingo Sector in Gakenke District which had only a
few files to prepare. For areas that had a high number of cases, this exercise could go
on for about three months. This was the case, particularly in the south of the country
with examples of the sectors Ngoma, Kinazi, etc.. It was also noted that the preparation
of files could take some time especially in urban areas where Inyangamugayo judges
often could not meet, except during weekends. In any case, implementation of the
procedure greatly facilitated the compilation of files, considering that about 818,564
case files were made in just a period of three months.
3.3.4. Strengthening of the legal framework led to speeding up of trials
The preparation of case files went hand in hand with putting the accused in
categories. By 31 May 2006, the first category consisted of 77,269 suspects
or 9.4% of the total, the second 432,557 or 51.8% and the third, 308.738 or
38.8%. The three categories totalled 818,564 suspects accused of participating
in the Genocide40. Given the importance of this figure, it appeared that the
judgments were not achievable within a reasonable time. Correspondingly, the
Article 33 of the Gacaca law of 2004 as amended and completed to date.
NSGC, Gacaca Courts: Origin and Achievements, p. 9.
39
40
99
goal of accelerating the settlement of genocide cases could not be achieved if
the legal system remained as it was41.
Therefore, the Legislature had to make amendments in the Law of 2004, by
reviewing the criteria for categorization of crimes and sentences on conviction
42
. Thus, under the new law, a number of accused in the first category were
transferred to the second; namely that of notorious killers, those who
committed torture or dehumanizing acts on the bodies of their victims. This
legislative revision reduced the number of cases pending before the regular
courts and increased the jurisdiction of Gacaca courts.
With the aim of speeding up the trials, another innovation brought by the
new law of 2007 was the increase of benches in Gacaca sector and appellate
courts. These courts had difficulties related to the overwhelming number of
cases. As for the number of judges which consisted of 9 per bench and 5
substitutes according to the law of 2004, it was reduced to 7 per bench and 2
substitutes. The quorum was also revised downwards.
In general, the increase in benches was associated with the fact that a Gacaca
court had over 150 cases to deal with43. At the sector level, 1803 benches were
added to the existing 1545. Similarly, 412 new benches were added to the 1545
already operational in the Gacaca courts of appeal. According to these figures,
2215 benches were added at the level of sector and appellate Gacaca.
At the same time, 9013 Cell Gacaca courts continued their work of trying
cases relating to property44. It should be noted that in order to guarantee the
smooth functioning of Gacaca courts, the increase in the number of benches
was accompanied by administrative measures, including increased monitoring
and coordination staff at the sector level.
See observation made by NSGC, especially in the Quarterly report of activities July –
41
December 2006 and in the Annual Report of activities, 2007.
Organic Law N°10/2007 amending and complementing Organic Law n°16/2004 of
42
43
44
19/06/2004.
NSGC, Annual Report of activities 2007 and NSGC, « Observations on the Report of
PENAL REFORM INTERNATIONAL on offences against property », undated.
NSGC, Annual Report of activities 2007.
100
In addition, it was necessary to recruit lawyers charged to advise Inyangamugayo
judges45. This assignment of new judges to the newly created benches made
it possible to try cases within a reasonable time. The implementation of these
measures to increase benches was explained in Instruction No. 11/07 of
03.02.2007 prepared by the NSGC.
Lastly, the law of March 2007 brought another scale of punishments as well
as new implementation measures set forth in Instruction n°15 of 1 June 2007.
The instruction was based on new legislation aimed at reducing the great
number of people in prison. It provided that after the procedure of confessions
and guilty pleas, those convicted in the second category should serve only
part their sentence in prison, part of the rest committed to Community Service
(TIG) and part suspended46. A letter from the NSGC on 16 June 2007 was
sent to the sector and appellate courts for the release of detainees, whose
confessions had been accepted, pending the start of community service.
The same wish to find ways to deal with genocide cases in a timely manner
led to enactment of Organic Law No. 13/2008 of 19 May 2008 reinforcing
the powers of Gacaca courts by transferring to them first category case files47.
Thus, cases of crimes of rape and sexual torture were placed in the Gacaca
courts, as well as those involving people who held high positions in governing
bodies, such as political party leaders, members of the army high command
and the gendarmerie, communal police, members of religious groups or
leaders of illegal militias up to the sub-prefecture level.
With this development of legal framework, Gacaca courts received 1282
additional records from ordinary Courts, the High Court, the Supreme Court
and Military Courts. They received over 671 cases from the office of the Public
Prosecutor. With trials of the first category, Gacaca courts did not encounter
major difficulties because on the one hand, these trials were not numerous and
on the other, they were entrusted to Inyangamugayo judges who had shown
their competence, integrity and know-how in previous judicial experience48.
47
48
45
46
Ibidem.
Introduction and Article 1 of NSGC Instruction n°15/2007 of 01 June 2007.
Published in the Official Gazette of the Republic of Rwanda n° 11 of 01/06/2008.
Interview with the Executive Secretary of NSGC in Kigali, 18 July 2011.
101
3.3.5. Collection of additional information on the sites of massacres
Gradually, as the Gacaca process made its way, there was new information that
required further investigation to verify the facts and prosecute the perpetrators.
It was important to ensure that speeding up of trials should not encroach on
human rights. Therefore, whenever important information appeared, steps
were taken by the NSGC to conduct additional data collection. The focus was
on sites of mass killings.
Before the designated courts moved to collect this information, the NSGC
led a wide campaign to inform people about the conduct of this phase of
additional data collection and invited them to participate actively in these
sessions. Twenty five announcements in total were sent between 2008 and
2009 to Executive Secretaries of the places requiring further investigation.
In this regard, some examples are worth noting. With regard to the killings in
Kabgayi, the NSGC organized sixty five sessions for collection of additional
information in eleven districts to get information on victims, perpetrators and
the data put together in Kabgayi between 10 November 2008 and 24 December
2008. The reason for such a wide investigation was justified by the fact that
during the Genocide, Kabgayi was a place of refuge and gathering for thousands
of people from different localities of the country. What is special is that these
victims were hunted by the killers from outside of their home communes and
the victims were killed from where they had gone to seek refuge.
Such additional information gathering took place also at Nyabikenke on 1st
October 200949, at the National University of Rwanda on 27 April to 8 May
2009 and of 11 to 15 May 200950; at the Catholic Parish of Nyamasheke from
26 to 27 August 200951 ; in the parishes of Karama and Simbi, at the Major
Seminary in Nyakibanda, in Kabakobwa, at the Byiza Stadium, in Rwaniro,
Bunazi and Muboni from the 26th to the 31st August 200952 ; at the parish of
49
NSGC, Announcement of 23 September 2009.
NSGC, Announcement of 06 May 2009.
51
NSGC, Announcements of 17 August 2009 et 26 February 2010.
52
NSGC, Announcement of 19 August 2009.
50
102
Muhororo from 6th to 9th January 2009 53, at the Ste Famille Church in Kigali
on 28 June 2009 54 ; with the Musha parish from the 25th to the 26th August
2009 55 ; at Gatsata, Muhima and Kimisagara for crimes committed at the
Nyabugogo roadblock on 9th August 200956 ; at Groupe Scolaire Marie Merci
in Kibeho on 6th August 200957 ; on Kabuye hill in Gisagara District on 27
July 2009; at Mamba in Gisagara District on 28 July 200958 ; in the Catholic
parish of Mugina on 28 July 200959 ; in the Cells of Kivugiza, Mumena and
Agatare in Nyamirambo Sector on 28 June 200960 ; in Gishaka parish in the
former commune of Gikomero and in Nkuzuzu sector on 6 June 200961 ; in
Kaduha on 8 June 200962 ; at ISAR Rubona between 20 and 23 May 200963 ;
at Ntarama Church in Bugesera District on 2 June 200964 ; in Nyamata on 3
June 200965 ; in the church of Midiho in Kayonza District 66 ; at Mukamira on
27 February 200967 ; at Musange in Nyamagabe District on 24 February 2009
68
; and finally at the Catholic parish of Nyundo on August 21, 200869.
The large number of places listed above, reveals a constant concern of NSGC
to conduct thorough investigations, to ascertain the accuracy of facts and their
perpetrators to bring them before Gacaca courts.
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
53
54
NSGC, Announcement of 24 December 2008.
NSGC, Announcement of 16 June 2009.
NSGC, Announcement of 21 August 2009.
NSGC, Announcement of 04 August 2009.
NSGC, Announcement of 16 July 2009.
NSGC, Announcement of 29 June 2009.
NSGC, Announcement of 22 July 2009.
NSGC, Announcement of 17 June 2009.
NSGC, Announcement of 04 June 2009.
NSGC, Announcement of 29 May 2009.
NSGC, Announcement of 18 May 2009.
NSGC, Announcement of 22 May 2009.
NSGC, Announcement of 22 May 2009.
NSGC, Announcement of 04 May 2009.
NSGC, Announcement of 20 February 2009.
NSGC, Announcement of 12 February 2009.
NSGC, Announcement of 14 August 2008.
103
During field investigations, there was a concern as to whether this additional
work would not hinder the speeding up of trials. In complicated cases such as
those of Kabgayi, new courts were set up to conduct these additional trials. In
addition, the NSGC used the judges who had proven their competence in the
conduct of these trials. Finally, these additional cases came to light after the
other trials had been completed.
3.4. Procedural measures that helped to speed up trials during the
trial stage
In this section, we return specifically to the design of the manual for conducting
trials in Gacaca courts, the criteria for processing case files and quantitative
results of speeding up trials.
3.4.1 Handbook for conducting trials
On moving to the trials stage, the NSGC developed a procedure manual that
summarizes the main rules applicable to genocide trials70. This handbook was
designed as a very simple practical tool to use and consult. It gave insights
in the preparation and conduct of hearings in Gacaca courts, the rules of
deliberation and pronouncement of verdict, appeal procedures, opposition
and revision as well as execution of judgments.
The manual also contained appendices that provided a presentation copy of
the judgment with all the elements: the number of the record sheet of the
accused, the name of the Gacaca court that handled the case, the identity of
the accused , the category, an indication of the confession and the verification
of its legality, the sentence, the date of the hearing, the decision for arrest or
detention, the order of immediate release, the notice of the judgment, the list
of people killed or victims with details on the responsibility of the accused,
the signature or fingerprint of the accused and members of the Gacaca court,
appeal, revision and final decision of the court.
NSGC, Judgement Procedure in Gacaca Courts, Kigali, January 2005.
70
104
The survey showed that users of this manual understood it without difficulty
and easily used it, thus facilitating the conduct and speeding up of trials.
3.4.2. Criteria for processing cases
The law on the organization, powers and functioning of Gacaca courts provides
that when the Gacaca Court at Cell level finishes the categorization of genocide
suspects, it takes care of the third category cases and transmits the files of
other categories to higher courts for trial. At the beginning of each month,
the president of each Gacaca court convenes a meeting of the coordinating
committee to prepare the agenda for hearings of the next month.
In order to facilitate the implementation of these legal provisions, the NSGC
established eight criteria for determining the order of hearings. It was initially
necessary to start by establishing the files of accused who acknowledged and
confessed their crimes and had received a provisional release. The NSGC
considered that the hearing and judgment of these people would make it
possible to know the truth of the facts and responsibilities that are fundamental
to the conduct of trials. Then, with the same objective, followed the files of
defendants who had confessed and were still in detention, and those who had
confessed but who were not imprisoned.
On purely humanitarian grounds, there followed the files of those who were
chronically ill, then followed children who were 14 years old and had not
attained the age of 18 age at the time of the of the Genocide, and individuals
with at least 70 years of age. After these categories followed the trial involving
the accused who are in custody but who had not confessed, and finally those of
the accused who had not confessed and were not yet in custody. For all these
groups, the files were judged according to the order of the court’s records.
At the programming level, it was required for members of the Coordinating
Committee to put together all the files that could be judged over a period
of one month and to assign them dates for hearing. This calendar was
communicated to the people through Cell coordinators. The Coordinating
Committee consulted the records and identified the persons to be summoned
whether the defendants, witnesses and victims. Those who lived nearby were
105
convened verbally, but with the obligation to affix their signature or their
fingerprint in the relevant book as proof of receipt of notice. Those who lived
far were convened by a written summons.
The combination of all these elements made it possible to accelerate the
judgments in a decisive way, as illustrated by the following statistics71.
Quantitatively, the number of cases of the second and third category judged
during the period of 15/07/2006 to 15/06/2009 is presented as follows:
Table 13: Number of cases of the second and third category judged during the
period from 15/07/2006 to 15/06/2009
Sector
Case
received
444.455
Appeal
72.110
70.520
1.590
Cell
612.151
611.167
984
TOTAL
1.128.716
1.122.589
6.127
Gacaca courts
files
Cases judged
Remaining cases
440.902
3.553
Source: NSGC, Quarterly report of activities January – June 2009, p.3.
Until January2010, the period during which we carried out this survey, the
number of files received had increased to 1,133,716 while the number of
cases tried was 1,132,652, the difference of the remaining files being only of
1,064 files. For the first category, the remaining files were 1,060.
A significant number of trials closed at the end of only one hearing, especially
when all the facts were clarified by the participation of the people or confession
and guilty plea by the accused. The cases which required several hearings are
those which were difficult to process, particularly because of their complexity,
lack or shortage of witnesses, or group trials that required special procedures
in order to give all parties time to present their evidence. During the month
of July 2011, we carried out a recount and analysis of completed cases in the
NSGC archives.
NSGC, Quarterly report of activities January - June 2009, p. 3.
71
106
To achieve this, and in order to determine the average duration of the trials,
we took a sample of 607 cases tried by Sector Gacaca courts at the first level
and 446 trials at the appellate level. The results obtained showed that at the
first degree, trials were accelerated at a very encouraging pace since 498 trials
that is 82%, were completed in one working session, 99 lasted two sessions,
i.e. 16%; 7 cases (1.5%) were tried in three sessions, and 3 or 0.5% took at
least four sessions.
As for the appellate level, a sample of 446 cases was examined and revealed
that 344 cases or 77% were tried in a working session, 83 or 18 % tried in two
sessions, 17 cases or 4% in three sessions, and 2 or 0.4% required at least
four working sessions.
Here are the statistics obtained in the form of tables:
Table 14 : Duration of trials at the first level
1 session
2 sessions
3 sessions
4 sessions
Number of cases
498
99
7
3
%
82%
16%
1.5 %
0.5%
Source: CCM Survey (second counting of closed cases), July 2011
107
Diagram Nº 17: Number of sessions of completed cases
Numberofsessionsofcompleted
cases
600
500
400
300
Numberoftrialsanalysed
200
100
0
1session 2sessions 3sessions 4sessions
Source: CCM Survey (second counting of closed cases), July 2011
Table 15 : Duration of sessions at the appeal level
Number of sessions
1 session
2 sessions
3 sessions
4 sessions
Number of cases
344
83
17
2
77 %
18 %
4%
0.4%
%
Source: CCM Survey (second counting of closed cases), July 2011
108
Diagram Nº 18: Number of sessions of appeal cases
Sessionsofappealcases
400
350
300
250
200
Numberoftrialsanalysed
150
100
50
0
1session 2sessions 3sessions 4sessions
Source: CCM Survey (second counting of closed cases), July 2011
These statistics and interviews with various stakeholders show that in the vast
majority of cases, the Gacaca process was able to accelerate genocide trials
significantly and to do justice in a timely manner, to both the accused persons
awaiting trial and the victims awaiting vindication from the outcome of the
judicial process.
Note that this task was easier at the sites where the data collection phase was
carried out effectively, and where much of the truth had been communicated.
The extension of some trials was due to different causes, including especially
the discovery of new facts, identifying new suspects, which required further
investigation.
In this category, we also find complex trials that involve people once very
influential who had succeeded in putting in place mechanisms to conceal the
truth. In this category, we also find complex trials. Another main cause of the
extension of some trials was due to cases involving several people. These
require further investigation using several witnesses who may no longer be
living in the same places.
109
3.5. Acceleration of judgments balanced against the requirement of the
right to a fair trial
Given the requirement of the right to a fair trial, the concern from the beginning
was that the objective of speeding up trials carried the risk of undermining the
rules of fair trial. There was need to avoid compromising of the principle of
hearing entirely both sides of every case, prosecution and defence, which is
an essential guarantee against arbitrary condemnation or acquittal. According
to t he results of our study, the speeding up of trials started in 2007, after
the judges had already gained experience in applying the rules of procedure.
Therefore, Gacaca courts followed the principles of equitable justice.
For 87% of the respondents interviewed, Gacaca courts managed properly
to accelerate genocide trials with due respect to the principles of fair trial.
Moreover, 75% believe that Inyangamugayo judges gradually gained expertise
and experience. This allowed them to conduct the trials properly within a
reasonable time. Finally, 75% believe that the acceleration of trials has not
been an obstacle to good administration of justice
The figures that have just been mentioned show that the majority of the
population of Rwanda has a positive perception of the Gacaca process, in
relation to the objective of speeding up trials. People interviewed refute the
allegation that Gacaca judges ignored some information as evidenced by the
following arguments:
110
Box: Consideration of information obtained despite the requirement to
speed up trials
Inyangamugayo judges took enough time to listen to people who had
information;
Throughout the proceedings, the judges respected the laws and instructions
from the NSGC despite the huge amount of work they had to do;
To obtain and process information properly, the judges had to sacrificed
themselves by working extra hours and days instead of once a week;
The judges exchanged experiences with their peers from other jurisdictions
on the analysis of records to expedite trials and uphold quality assurance;
The answers from the majority of respondents show that they believe
information gathering was a thorough investigation, which collected the facts
on genocide and related crimes, identified the victims and potential witnesses
for both prosecution and the accused. The vast majority of respondents
recognize that, during the trials, Inyangamugayo judges upheld the principle
of listening to testimonies from both prosecution and defence witnesses.
Among the examples cited, several respondents indicated that judges strictly
insisted on observance of the law in all proceedings, including prosecution
of those found guilty of bearing false witness or those who refused to testify.
All these elements taken into consideration by the Gacaca courts in receiving
and accepting evidence contributed to observance of the principles of fair trial
despite the need to speed up the process. It should be added that they ensured
the equality and rights of all parties, guaranteed the presumption that a person
is innocent until proven guilty beyond all reasonable doubt and the grounds
of judgments, which are part of the fundamental aspects that characterize a
fair trial.
111
3.6. Obstacles encountered in trying to speed up trials and solutions
The developments explained above show that Gacaca courts contributed
greatly to the speeding up of genocide trials while respecting the principles of
fair trial. However, certain limitations were observed in the functioning of the
system. We cite some of the most significant:
Box: Barriers to speeding up trials
Some witnesses or parties to a case did not get the opportunity to participate
in other proceedings taking place simultaneously.
New information obtained during the completion period delayed closing of
the activities of Gacaca courts (e.g. witness / Mugina);
Many requests for review and copies of judgments delayed closing of the
activities of Gacaca courts.
With the legislative amendment in March 2007, the NSGC developed a
directive whose main objective was to increase the number of seats in order
to speed up trials 72 as previously mentioned. Any Gacaca sector or appellate
court with over 150 cases was now obliged to try to increase the number
of benches. The general observation from investigation as expressed in the
box above is that the increase in the number of benches led some courts to
conduct several hearings simultaneously. This created difficulties in terms of
stakeholder participation in some trials. To remedy this situation, the NSGC
allowed opposition or even retrial where judgment had been rendered in the
absence of either party, even if this solution was delaying progress of the
activities of Gacaca courts.
NSGC, Instruction n°15/2007 of 01/06/2007.
72
112
Another major limitation cited by respondents was that there was new
information obtained during the closing activities of Gacaca courts that may
not have been sufficiently investigated because the judges were under pressure
to complete the trials. Such comments were made by respondents in Mugina,
of Kamonyi District
During this research, we found out that when such cases appeared, the NSGC
hurried another court from a different area to review that information and
conduct related trials. In the case of Mugina, for example, the NSGC sent the
Gacaca Court of Gahogo which delivered its verdict thereon on 15 September
2011.
Another major obstacle to the speeding up of the activities of Gacaca courts
was that, towards the end of the trials period, there was an exceptional increase
in applications for review of cases that had already been closed. These requests
came mostly from convicts whose cases had been definitively closed. Other
requests came from some genocide survivors who had not requested for copies
of verdicts on property cases at the time they were delivered. On learning
about the imminent closure of Gacaca courts, they rushed to the head office of
the National Service of Gacaca courts to ask for copies of judgments in order
to demand for their execution.
With regard to applications for review, the NSGC appointed Gacaca courts
with competence to analyze and decide which of the cases had valid grounds
for review, that is, those which showed new evidence or where sentences
pronounced had not been in accordance with the law. As for requests for copies
of judgments in third category cases, since the registers of activities had
already been filed, the NSGC made the difficult decision to select books and
seals of the Gacaca courts concerned and give them to Inyangamugayo judges
to make the requested copies of judgments. As can be seen, this operation
was delicate and required costly logistics and adequate security measures. All
these measures had the effect of postponing for several times the closing of
the activities of Gacaca courts.
113
3.7. Partial conclusion
This analysis has shown that, in the vast majority of cases, the Gacaca process
was able to accelerate genocide trials significantly and to do justice in a timely
manner, to both the accused persons awaiting trial and the victims awaiting
the outcome of the judicial process.
Quantitatively, 82% of the trials were closed in one session, 16% in two
sessions, 1.5% in three sessions, and 0.5% in more than 4 sessions. Similarly,
87% of respondents believe that the Gacaca courts have managed to speed up
trials while respecting the principles of fair trial.
However, the speeding up of trials faced three major obstacles; firstly, it
was difficult for certain witnesses or parties to the proceedings to have the
opportunity to participate in all proceedings taking place simultaneously
and sometimes from different places. Secondly, it should also be noted that
in some cases new evidences were obtained during the final phases of the
proceedings and thereby, delayed the closing of the activities of Gacaca
courts. And, finally, the increase in applications for review and for copies of
judgments towards the closing period for the activities of Gacaca courts led
for several times, the postponement of their closure.
To overcome these obstacles, the NSGC took steps including objections to
judgments delivered in absentia, setting up Gacaca courts with competence
to analyze the basis and decide on applications for review which show new
evidence and those whose sentences were not in accordance with the law. As
for requests for copies of judgment of the third category, the NSGC sorted and
gave the journals and seals of the Gacaca courts involved to Inyangamugayo
judges so that they could make copies of judgment.
114
CHAPITRE IV
CONTRIBUTION OF GACACA COURTS IN THE FIGHT AGAINST
IMPUNITY
4.1.Introduction
Given the third objective of the Gacaca courts which was the fighting against
impunity, Gacaca courts were required to do justice in accordance with the
principles that govern fair trial.
In the same vein, the Rwandan government which is bound by its obligations
under international conventions in criminal matters as mentioned above
had the duty to fight against impunity through the Gacaca courts based on
regulatory instruments of the right to fair trial.
The following points review the principles that guarantee the right to fair
trial in the Gacaca courts process and the obstacles encountered as well as
the solutions thereto. There is an analysis of the principle of impartiality,
that of independence of Gacaca courts, respect of the right to defence, the
presumption of innocence, the right to a substantiated court judgement and
enforcement of judgments.
4.2. Impartiality and independence of Gacaca courts
The essential characteristic of judicial independence is that judges are out of
reach of pressure from the Executive branch of government or the influence of
institutional administration. In Rwandan law, the independence of the judiciary
is enshrined in Article 140 of the Constitution. The law governing Gacaca
courts also includes various provisions that guarantee the independence and
impartiality of Inyangamugayo judges.
115
Thus, it is permissible for parties to challenge a judge, where there is evidence
(objective or subjective), that his/her impartiality is questionable in a given case.
Similarly, no member of the Gacaca court is allowed to sit or to make decisions
on matters affecting them, or where a family member is being prosecuted, or
any other person with whom there is a relationship, friendship or enmity that
may hamper her freedom to make impartial decisions. In the sections below,
we analyze how these provisions have been observed and enforced by the
Gacaca courts in the conduct of trials.
4.2.1. Characteristics, manifestations of independence and impartiality
of Inyangamugayo judges
There are some aspects that characterize the independence and impartiality of
Inyangamugayo judges upon their election and throughout the period during
which they perform their duties as judges. These are enshrined in law and
their implementation was overseen by the National Service of Gacaca Courts
(NSGC), in the exercise of its prerogatives as an authority that provides
advice, assistance and coordination.
4.2.1.1. Conditions for voting, election and replacement of Inyangamugayo judges
The conditions under which Inyangamugayo judges were elected were
characterized by the desire for independence and impartiality. The first
elections of Inyangamugayo judges took place between the 4th and 7th of
October 2001; during which more than 250 000 judges were elected in an
open vote. They were supervised by the National Electoral Commission and
the turnout was a record rate of 87%73.
On one hand this showed the public interest in Gacaca courts, and on the
other hand it reflected the successful mobilization in the effort to elect judges
of integrity. Regarding the elections, candidates were presented to the cell
population of voting age, which was then invited to express opinions about
the candidates.
73 Penal Reform International (PRI), Eight years later: “an update on the monitoring of the
Gacaca in Rwanda”, 2010.
116
Where serious reasons were advanced by the population indicating doubt about
the integrity of a candidate, the Assembly proposed another to replace him/her.
Among the indicative criteria for the probity of a person were the following:
notorious alcoholism, adultery, dishonesty notably marked by failure to pay
debts, violent character, the participation in the Genocide, etc. These aspects
represent the vices which violate the moral criteria characteristic of important
values to which Rwandans are attached.
Let us emphasise here that the election was held indirectly: Regarding the
procedure, the supervisors asked the voters to line up behind the person
whom they supported and the votes corresponded to the number obtained.
The candidates elected the at cell level in turn had to elect in writing and in
secret ballots, members of the Coordinating Committee of the cell. These
were then appointed to serve at the sector level. The same procedure was
applied at the sector level, that of the district and of the province.
Such a process really shows that the judges were selected without external
influence such as to guide the selection of a particular candidate. We can say
that the independence and impartiality in the exercise of judicial functions
were preserved. This orientation was reinforced by the recommendations of
the high authorities of the country. Thus, in his speech to the nation before
the elections, the President of the Republic, His Excellency Paul Kagame
urged the people to elect: “honest, just and hard-working people, and to do
so without any discrimination”74.
Given the difficult task of rendering justice in the post-genocide context,
and since the legitimacy of Inyangamugayo judges was based solely on their
integrity, some of them were eventually replaced when people discovered their
lack of this important quality. The data from the NSGC indicate on this subject
that in 2004, when the pilot phase was in full swing, 9% of Inyangamugayo
judges representing 1.319 judges from a total of 14.402 were dismissed.
Half of them were replaced due to the discovery of their involvement in the
genocide, the other half, for various other reasons affecting their integrity 75.
Speech by His Excellency the President of the Republic at the official inauguration of
74
75
Gacaca Courts, 18 June 2002.
NSGC, Document on the progress of activities of Gacaca Courts in operational cells and
117
4.2.1.2. Training of Inyangamugayo judges
The NSGC developed training and monitoring program to enable
Inyangamugayo judges to acquire the legal knowledge required for their work.
It continued to provide them with tools to enable them to render independent
and impartial justice. For this purpose, the first handbook intended for the
judges was published in October 2001. One-week training based on this
educational tool was organized during the months of April and May 2002, in
anticipation of the start of Gacaca courts.76 It related mainly to the Organic
Law of 2001 on the creation of Gacaca courts and trial procedures.
After the 2004 amendment of the law of 2001, other training sessions were
organized. They enabled Inyangamugayo judges to deepen and use their
knowledge of the law on Gacaca Courts. As in 2001, the NSGC published
simplified booklets relating to the Gacaca law, in order to help the judges
to more easily understand the procedure and substantive rules. Next, the
coordinators of the activities of Gacaca courts were recruited and deployed
throughout the country, with the mission of advising and of supporting
Inyangamugayo judges in their function. A document of the NSGC indicates
that when preparations were under way for the start of Gacaca courts
throughout the country, a two-stage training took place: training of trainers
for the judges and actual training of the judges77.
Similarly, the Annual Report of Activities of the NSGC for 2004 mentioned the
priority given to training Inyangamugayo judges on several topics including:
new elements contained in Organic Law n° 16/2004 of 19/06/2004, the respect
of the rights to an equitable trial in Gacaca courts, the contribution of Gacaca
courts to the process of national reconciliation, trauma, emergency rules and
basic medical care for those traumatized, issues of witness protection, etc.
76
77
programs of future activities, Kigali, 21 January 2004.
NSGC, Explanatory handbook one the Organic Law one the Creation of Gacaca Courts,
Kigali, October 2001; Annual Carryforward S for 2003 and 2004.
NSGC, Document on the progress of activities of Gacaca Courts in operational cells and
programs of future activities, Kigali, 21 January 2004.
118
To succeed in this task, the NSGC has appealed to various specialists in
relevant fields. Several institutions that have contributed in that regard include:
the Ministry of Health, the Ministry for Internal Security and the National
Police, the National Commission for Unity and Reconciliation Commission
of Human Rights, the Executive Secretariat of Works of General Interest.
NGOs such as International Rescue Committee and the project PAPG78 also
participated in this noble mission.
As regards the training of the trainers for Inyangamugayo judges, the need
was identified to train 156,807 judges in the 8,252 cells that were to start their
activities. This task required at least 842 trainers. Thus, in addition to the 342
officers of the NSGC, it had to recruit 500 training consultants to support
existing staff.
In the preparation for training, the principle applied in the choice of the
candidate-trainers was to take into account the intellectual ability of the
candidate to follow the training and be able to provide it to others. The judgetrainers then followed the training along with the coordinators of Gacaca
Courts at the district level and Kigali City.
Funded by the Belgian Technical Cooperation, the training was given in two
sessions a week, from 12 to 17 and from 18 to 23 July 2004 at the Training
Centre in Murambi (RIAM) and at CEPAF in Muhanga. The total number of
trainers who were trained was 551 people.
With regard to the training of the judges, they had been trained two years
earlier but had not put these acquired skills into practice. It was found
important therefore, to give them refresher training and then redeploy them
to their respective sectors so that they train their colleagues from 9013 cells.
The Executive Secretaries of the sectors were also trained along with the
Inyangamugayo because they were among those who were monitoring the
Gacaca process, especially during the phase of data collection and enforcement
of judgments. These training sessions lasted two months and took place
between 26 July and 09 September 2004. Their turnout was a success, if
judged by the following statistics 79:
NSGC, Annual Report of activities, 2004, p.7.
NSGC, Annual Report 2004, pp. 8-14.
78
79
119
Table 16: Training for the Gacaca process
Province
Number of
courts
Number
of
trainers expected
Number of trainers who
completed training
%
Kigali City
219
3109
2670
86%
Kigali rural
1180
16659
15634
94.6%
Gitarama
1060
14840
14215
96%
Butare
684
9576
9030
94%
Gikongoro
836
11823
11365
97%
Cyangugu
687
9733
9384
96%
Kibuye
604
8456
8115
95.9%
Gisenyi
859
12051
11874
95.7%
Ruhengeri
941
13251
12764
96.1%
Byumba
776
10864
10383
95.2%
Umutara
402
5652
5130
90.2%
Kibungo
723
10122
9865
97.4%
Source : NSGC, Annual report 2004, pp. 8-14.
This training was followed by another for the benefit of Inyangamugayo judges
of Gacaca courts of sectors and of appeal levels and those of 751 pilot cells.
The judges of these courts received training to enable them to directly start
the trials after the phase of data collection. The training was provided by the
NSGC with the support of the ASF Belgium80. It consisted of mainly: Defining
the crime of genocide and other crimes against humanity, criminal procedure,
sentencing and execution of judgement, the appeals process, compensation
of property and other rights of victims, the meaning of the concepts of
“Inyangamugayo’’, independence and impartiality of Inyangamugayo judges
and their relationships with other courts, rules for confession, guilty pleas,
repentance and asking for forgiveness.
Other related training sessions were held in connection with administrative
aspects such as, for example; receipt and safe keeping of documents in the
courts, preparing reports, and the functioning of Gacaca courts. It was the
same for those which were organized in collaboration with the Ministry of
NSGC, Annual Report of activities, 2004, p.15.
80
120
Health on trauma. The table below synthesizes the statistical data on the
participation of Inyangamugayo judges81 :
Table 17: Geographical distribution of training on the Gacaca process
Province
Number of
courts
Number of trainers
expected
Number of trainers
who completed
training
Kigali City
137
1918
1598
82.8%
Kigali rural
383
5362
5134
95.5%
Gitarama
413
5781
5607
97%
Butare
424
5936
5591
94%
Gikongoro
253
4214
4077
96.4%
Cyangugu
280
3920
3803
97%
Kibuye
250
3500
3379
96.7%
Gisenyi
349
4886
4773
98.2%
Ruhengeri
354
4956
4868
98.2%
Byumba
330
4620
4492
97.2%
Umutara
219
3066
2817
91.4%
Kibungo
302
4228
3994
93%
%
Source : NSGC, Annual report of activities, 2007, pp. 24-26.
When Organic Law n° 16/2004 of 19/06/2004 was amended and complemented
by Organic Law n°10/2007 of 01 March 2007, further training was provided
to Coordinators of Gacaca courts and Inyangamugayo judges between
12/03/2007 and 05/04/200782.
Ibidem, pp. 16-22.
NSGC, Annual Report of activities, 2007, p. 24-26.
81
82
121
Several instructions83 were also issued by the NSGC to give guidance to
Inyangamugayo judges on the provisions of the new law. Discussion sessions
were held across the country with the judges 84, local authorities and opinion
leaders85, detained suspects86, Genocide survivors87 and in public meetings88.
In this study, we wanted to check whether the training provided by the NSGC
allowed Inyangamugayo judges to understand their legal role and conduct
trials in accordance with the principles of fair trial. On this point, 87% of
respondents said they consider that the judges completed their mission
properly, although they were not professional judges. They added that Gacaca
courts achieved the important objective of having found a typically Rwandan
solution to solve problems caused by the Genocide.
Instruction N° 11/07 of 02/03/2007 of the Executive Secretary of the National Service
83
84
85
86
87
88
of Gacaca Courts relating to the setting up of more than one bench for a Gacaca Court
and their collaboration; Instruction no 12/2007 of 15/03/2007 relating to review of cases
tried by Gacaca Courts; Instruction no 13/2007 of 20/03/2007 on assisting Gacaca Courts
to implement the provisions of Organic Law n° 10/2007 of 01/03/2007 amending and
complementing Organic Law n° 16/2004 of 19/06/2004 establishing the organisation,
jurisdiction and functioning of Gacaca Courts charged with prosecuting and trying the
perpetrators of the crime of Genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994 as modified and complemented to date;
Instruction n° 14/2007 of 30/03/2007 relating to compensation for property destroyed
during the perpetration of the crime of Genocide and other crimes against humanity,
committed between October 1, 1990 and December 31, 1994. Instruction no 15/2007 of
01/06/2007 of the Executive Secretary of the National Service of Gacaca Courts relating
to execution of a sentence given to a person whose confession, guilty plea, repentance and
request for forgiveness were accepted by a Gacaca Court.
From 10/09/2007 to 10/10/2007, support was provided by the NSGC to Inyangamugayo
Judges across the country to help them sort first category case files under the new law.
Meetings were held at district level from 18/06 2007 to 30/06/2007, which were followed by those held at the sector level and in prisons.
The NSGC Annual Report of activities for 2007 indicates that meetings were held in all
prisons in the country to inform and educate inmates on the importance of participating in
Gacaca Courts, in particular the benefits of confession, guilty plea, repentance and asking
for forgiveness (see p . 25).
From 06/02/2007 to 16/02/2007, the NSGC organized meetings with representatives of
genocide survivors across the country, in was attended by paralegals of IBUKA to inform
survivors of the provisions of the new law and explain to them the important role they had
in Gacaca trials. These meetings were led by lawyers of the NSGC. Similarly, from 29/07
to 16/08/2007, information meetings for the survivors of genocide were held in all sectors.
In this context, during 2007, radio broadcasts were given by the NSGC every Monday on
Radio Rwanda and on other stations when needed. There were also meetings in various
districts in the presence of NSGC lawyers (See Annual Report, 2007).
122
Then, we also wondered whether Inyangamugayo judges improved their
competences and their practices as they gained experience. Concerning this
question, the results of this study show that 74.8% of respondents answered
that the quality of justice delivered by Inyangamugayo judges improved as
they gained experience and followed further training for this purpose.
These figures show in fact that Gacaca courts were really genuine instruments
of contribution to the resolution of legal issues arising from the Genocide.
Moreover, this was done in compliance with the rules of fair trial, as they are
set forth in the law governing Gacaca courts and in international conventions
that were ratified by Rwanda.
4.2.1.3. Independence of Inyangamugayo judges
The nature of relations between the Gacaca courts, the NSGC, the central
administration and decentralized bodies is determined by Articles 49 and 50
of the law governing Gacaca courts. On reading these provisions, the concern
of the law to guarantee the complete independence of Gacaca courts is clear.
Indeed, relations between these institutions and Inyangamugayo judges are
limited only to assistance to Gacaca courts to facilitate their work, or to
provide them with purely technical support.
Thus, under the terms of article 49: “Leaders of administrative organs in
which Gacaca Court function shall provide them with premises in which they
shall perform their duties, as well as sensitize the population for their active
participation. They exercise a steady monitoring of the functioning of Gacaca
Courts and provide them with necessary materials, in collaboration with the
National Service in charge of follow up, supervision and coordination of the
activities of Gacaca Courts.”
To confirm this fact, Article 50 explains the role of NSGC and clearly forbids
it to give orders to the Gacaca courts in their judicial function. This is a clear
sign of the independence of these bodies:
123
“The National Service in charge of follow up, supervision and coordination
of the activities of Gacaca Courts, follows up, supervises and coordinates
Gacaca Courts’ activities in the country. It also issues rules and regulations
relating to the smooth running of Gacaca Courts, as well as the conduct
of persons of integrity, without prejudice to the Gacaca Courts’ ways of
trying.”
The legal framework is thus clear and does not contain any ambiguity as to
the intention of the law to guarantee the independence of Inyangamugayo
judges in the performance of their duty. The various reports of activities of the
NSGC also establish that the role of this institution was limited to four purely
technical and non-judicial components89. First, in terms of respect of law, the
role of NSGC was to verify compliance with the law by the Gacaca courts,
while giving them legal advice to help them improve their performance and
the quality of justice that they were called upon to deliver.
In addition, the NSGC took part in the collection and storage on computers
case files from ordinary courts and military tribunals for their transfer to
Gacaca courts. It also took part in the preparation of files from Gacaca courts
for transfer to the public prosecution, and monitoring the work of gathering
additional information.
Then, the component of sensitizing people was characterized by meeting in
all the Sectors of the country to prepare ordinary people for participation
in the activities of Gacaca courts. Lastly, the NSGC was involved in the
communication and the coordination of the activities with the other institutions,
especially information on the progress of the Gacaca courts, granting of
permits for monitoring of the trials, reception of the requests from the public
relating to Gacaca courts, etc.90.
As for the administrative authorities, their role was to provide assistance
authorized by law to help Gacaca courts to accomplish their mission. It is in
this context that various public institutions participated to ensure the smooth
See various NSGC annual reports of activities for 2008, 2009 and 2010.
Ibidem; Interview with Ms Mukantaganzwa Domitilla, NSGC Executive Secretary,
89
90
Kigali, 18 July 2011.
124
running of the training provided to Inyangamugayo judges. These were mainly
the Ministry of Justice for the preparation of bills governing Gacaca courts,
and other support, the Ministry of Health for monitoring and treatment of
trauma cases, and the Ministry for Internal Security for security issues during
the conduct of trials.
It should also be noted that the Ministry of Local Government played a major
role in logistics and sensitizing the population to take part in the work of
Gacaca courts. The National Commission on Human Rights also devoted
itself to the training of people monitoring the Gacaca courts process. Finally,
the National Commission for Unity and Reconciliation played an important
role in supporting Gacaca courts so that they may be able to contribute better
to the objective of national reconciliation91.
Let us comment here that the NSGC fulfilled well its role of monitoring,
advisory and coordinating the work of Gacaca courts and always challenged
administrative authorities who wanted to interfere in the legal process, by
calling them to order so that they do not exceed their function. Thus, in
a document on the progress report of the activities of Cell Gacaca courts
and programs for future activities, the NSGC noted that in some places,
the coordinators of Cells and Sectors sought to have the upper hand in the
meetings of Gacaca courts.
The report added that those leaders did not seem convinced when it was
explained to them that their role was limited to sensitizing the population
to take part in the Gacaca courts. Objections to this behaviour which was
observed especially at the beginning of the Gacaca process had also been
raised by organizations such as IBUKA 92 and PRI93. During this study, we
actually noticed that whenever such cases appeared, the officers of the NSGC
always intervened to clarify the role of each one in order to guarantee the
independence of Inyangamugayo judges.
Ibidem ; See also NSGC, Annual Report of activities 2004, pp. 22-23.
IBUKA, Raporo igaragaza bimwe mu bibazo biri mu nkiko Gacaca,
Kigali, November 2010.
93
���������������������������������������������������������������������
PRI, Report of monitoring and research on Gacaca: testimony and evidence before Gacaca Courts, 2008, p. 42.
91
92
125
4.2.2. Impartiality and independence of Inyangamugayo judges in their
work
Let us recall that the trials phase of the Gacaca process began on 10 March
2005 with 118 pilot Sector courts and 118 pilot courts of appeal. At the
beginning of their activities, some of them were characterized by try and
error. But over time, observers noted real commitment in the vast majority of
them. Thus, clear improvement and much greater integration of the rules of
the trial became a reality. Respect and understanding of the need for proper
procedure, the zeal of Inyangamugayo judges to fulfil their judicial mission,
to continue their activities with knowledge and dedication were evaluated as
encouraging signs94
Our study shows that 92% of respondents consider that Inyangamugayo
judges managed to apply the provisions of the law in all independence. We
can thus conclude that in the Gacaca process, Inyangamugayo judges worked
with the independence and impartiality required for conducting a fair trial.
The quality of justice was achieved in particular through the experience of the
judges over the days, but also by lessons from various training courses organized
by the NSGC with support from other institutions. These institutions helped
Inyangamugayo judges to gain mastery of the rules of procedure and improve
the quality of legal arguments95 as well as increased skills in understanding
the law, which is a key element in giving grounds on which judgements and
penalties are based. It should be added that the regular holding of trial sessions
was also a determining factor that brought Inyangamugayo judges a judicial
experience in the control of legal arguments.
In its report for 2007, CLADHO a local human rights organisation pointed
out that the competence of the majority of Inyangamugayo judges continued
to increase as reflected inter alia by: « mastery the law and procedures,
default judgments, or transfer to other courts etc. Thus, for example, in the
Districts of Nyamagabe and Nyaruguru, Inyangamugayo judges mastered the
ASF, Monitoring of Gacaca Courts, the trials phase, Analytical report N° 1 March-
94
95
September 2005, p.8 ; ASF, Analytical report n° 2, pp.20-21.
ASF, Analytical report n°2, p.20.
126
procedures and the Organic Law on Gacaca courts so well that they could
easily distinguish between true and false testimonies 96 ».
For its part, the NSGC always ensured that Inyangamugayo judges are
characterized by independence and the impartiality. Thus, it sanctioned by
dismissal and replacement of Inyangamugayo judges who showed bias in
the performance of their duties. For example, in the Sector Gacaca Court
of Mamba in Gisagara District, six Inyangamugayo judges were replaced
in November 2007 because of their clear bias in the conduct of trials that
took place during the month of November 200797. In the Cell Gacaca court
of Mulinja, in Gahanga Sector of Kicukiro District, it was discovered that
almost all the members of the court had family ties, which had an influence
on decision making. To resolve this problem, the General Assembly decided
to dissolve the bench and replace it with other Inyangamugayo judges98.
In other cases of suspected infringement on the independence and impartiality
of judges that required extensive investigations, the NSGC had recourse to the
competent courts for processing of such cases. Thus, in Kiyumba Sector in the
Remera Cell Gacaca Court, three prosecution case files against the accused
charged with the murder of the children and husband of a witness disappeared
after they had been prepared by the same court. The case was forwarded to the
prosecuting authorities to conduct investigations relating thereto 99.
It should be noted that these are only a few cases selected for illustration to
show how the measures taken by the NSGC were effective in safeguarding
the independence and impartiality of Inyangamugayo judges.
Another phenomenon that might have interfered with the impartiality and
independence of Inyangamugayo judges had manifested itself earlier in the
work of Gacaca courts. It concerned cases of Judges suspected of genocide
whereas they had been elected as persons of integrity 100. This problem came
98
99
96
97
100
CLADHO, Report on the activities of Gacaca Courts, October-December 2007, p.29.
NSGC, Annual Report 2007, p.13.
NSGC, Report of activities, January-June 2006, p.15.
NSGC, Annual Report 2007, p.14.
See especially NSGC, Annual Report of activities 2005.
127
to light at the time of data collection, especially during the making of lists of
suspects and their categorisation. During the period from 15 January 2005
to 30 June 2006, the total number of Inyangamugayo judges accused of
participating in the Genocide rose to 45,396 persons 101.
To remedy this, the NSGC has ensured that Inyangamugayo genocide suspects
are replaced so as not to interfere with the independence and impartiality of
justice Gacaca. Clearly, if such persons remained in the seats of the courts, they
would have used their power to conceal some crimes and their perpetrators,
thus hindering the proper functioning of justice.
The combination of the measures mentioned above led to improved analysis
of facts and unfettered decision making of Inyangamugayo judges. This is an
obvious sign of the independence and impartiality of the justice delivered in
the context of the Gacaca Courts process.
4.3. The respect of the right to defence
According to the International Covenant on Civil and Political Rights, the
right to defence has three aspects: the right to be tried in his presence, the right
to defend himself in person or through legal assistance of his own choosing
and the right to examine, or have examined, the witnesses against him and to
obtain the attendance and examination of witnesses on his behalf under the
same conditions as witnesses against him.102
4.3.1. The right to legal defence by advocate of one’s choice within the
framework of the Gacaca process
Article 18 paragraph 3 of the Constitution of the Republic of Rwanda of 04
June 2003 as amended to date stipulates that: “The right to be informed of
the nature and cause of charges and the right to defence are absolute at all
levels and degrees of proceedings before administrative, judicial and all other
decision making organs.”
NSGC, Quarterly report of activities January – June 2006, p.3.
International Covenant on Civil and Political Rights, Article 14, paragraphs 3(d) and (e) .
101
102
128
It is therefore apparent from the foregoing that the above-mentioned right is
guaranteed by legal provisions, including the law governing Gacaca courts,
especially in its Article 65 (d) which states that “the defendant gives his or
her defence.” Although the law governing the functioning of Gacaca courts
did not exclude the presence of lawyers, it is clear in practice that there would
not be a sufficient number of them for the conduct of more than a million
trials. We should remember that the Kigali Bar, the only one in Rwanda at
the start of the pilot phase of trials, had only 131 lawyers in 2005 and 269 in
2007, during the full phase of trials throughout the country.
In fact, professional lawyers took part in trials at the sides of their clients, as
the example of the case of Father Guy Theunis shows. He appeared before the
Gacaca court of Ubumwe Cell of Nyarugenge District in 2005. The defendant
was accompanied by his lawyer, Mr Protais Mutembe, who provided him
with counsel and answers to give for his defence. It was the same for the cases
of Kalikumutima, Byuma Francois, Ntawangundi Jean Bosco, etc.
It should be stressed that the law governing Gacaca courts takes into account the
basic principles regarding the right to defence. The aforementioned authorities
particularly guarantee the right to speak at hearings, the obligation of judges
to verify testimonies for and against a defendant and to give a fully reasoned
judgment based on facts and law. They thus respected the right of defence by
allowing defendants to hear publicly the charges against them, to contradict
them and participate in arguments with their accusers on all legal and factual
matters regarding their case. In doing so, fair trial was guaranteed.
This survey revealed that 82% of respondents consider that the active
participation of the people and Inyangamugayo judges allowed the trials
to proceed in accordance with the law, including the right of defence. This
high proportion clearly shows that the majority of the population of Rwanda
believe that the Gacaca process has done its work of justice in compliance
with the rules of the right to defence. In fact, it was assured to the extent
that any accused person was allowed to provide unlimited evidence in his/
her defence, including the power to call an unlimited number of defence
witnesses. In the case Buzizi Gratien for example, the number of witnesses
reached 39 persons103.
��������������������������������������������������������������������������������
Interview with Ms Mukantaganzwa Domitilla, Executive Secretary of the NSGC, Kigali 18 July 2011.
103
129
4.3.2. Equality of defence and prosecution before the courts and
observance of the principle of debate
The equality of prosecution and defence before the law implies that each
party to proceedings has the right to advance its arguments before the judges
without any special or preferential treatment reserved for one or the other.
Neither party should be deprived of the means of presenting its case, which
implies that the parties at trial must be treated equally. In other words, the
opportunities for defence and prosecution should not be disproportionate.
Thus, the right to legal debate means that each party has the opportunity to
defend itself, to counter the arguments of the opponent, to examine or have
examined all prosecution and defence witnesses.
To the extent that the Gacaca courts based their judgments primarily on
testimony, it was an obligation for them to observe the principle of equality
of prosecution and defence and give each party equal opportunity to argue its
case. Inyangamugayo judges did not only have to hear the arguments of both
parties and those of witnesses, but also to carry out thorough investigation
during the trials.
To this end, the judges must crosscheck diverse information presented by the
parties, the witnesses and the participating public, to validate the evidence
presented. It is in this context that the prosecution presented the charges
against the accused and the evidence in support thereof. The prosecution was
therefore obliged to give details of all the evidence at its disposal, so that the
accused could make his/her defence.
As we have already mentioned, almost all the evidence Inyangamugayo
judges required in the legal process consisted of the testimonies of defendants,
victims and the local community as a whole. Regarding this aspect, 90% of
respondents believe that Inyangamugayo judges complied with the law in
conducting proceedings during the trials, to the extent that they ensured that
information gathered during the collection phase was verified through legal
debate and extenuating evidence.
130
When respondents were asked whether they were aware of specific facts
where Inyangamugayo judges did not follow the rules of legal debate, 71%
said no. From these responses to our survey, we can conclude that in general,
the Inyangamugayo judges presided over the hearings properly in order to
ascertain individual responsibility of the accused, in terms of both materiality
and intent. They also helped to assess whether the admitted facts constituted
offences under the law and whether they were voluntary, free and full in cases
of confessions by the accused.
Thus, according to the law governing Gacaca courts, judges were obliged
to treat equally the various defendants that they had to judge. They also
had to investigate for the truth to come out, to establish individual criminal
responsibility based on evidence. Information obtained during this study
shows that in most cases, the inclusion debate on statements of witness and
defendants took place in accordance with Article 39 of the Gacaca Law, which
stipulates that:
“Gacaca Courts have competences similar to those of ordinary courts, to
try the accused persons, on the basis of testimonies against or for, and other
evidences that may be provided.”
However, there were some cases of distortion to this rule, especially in
places where there was a very limited number of genocide survivors who
were often threatened or suffered harassment and were therefore afraid of
giving their version of facts. We can cite for example the trial of Nsabimana
Prudence (Buringa Gacaca court), in which the speaking was dominated by
the defendant at the expense of the victim.
To rectify such situations, the NSGC approved retrials, often by Gacaca courts
from other jurisdictions. This solution seemed the most effective in the sense
that judges from elsewhere were less influenced by local trends. In case of
recurrence of such behaviour, the NSGC replaced the biased judges.
Regarding specifically proceedings relating to the crime of sexual violence, the
issue of hearing the cases in camera as provided by law was often challenged.
131
In this regard, some international NGOs felt it violated the right to public
trial and did not allow the people to know the arguments for and against the
accused104.
In legal terms, however, this criticism had no basis, since the Constitution
of the Republic of Rwanda of 04 June 2003 as amended to date provides for
hearings in camera in its Article 141 paragraph 1 as follows:
“Court proceedings are conducted in public unless a court determines that
the proceedings should be in camera on the ground that a public hearing
might have an adverse effect on general public order or would outrage public
morals”
Similarly, the International Criminal Law applicable to crimes of sexual
violence and the practice of international criminal tribunals allow proceedings
to be held in camera for evidence in trials relating to such crimes 105. The same
NGOs moreover are aware of the difficulty experienced by victims of the
Genocide in talking about these crimes, because of the shame or guilt they
���
feel, which most often leads to traumatic silence 106
. Indeed, given the social
and cultural context of Rwanda, it is difficult to imagine how cases involving
sexual offences could have been recalled and discussed publicly without
causing extreme discomfort to the victims and the witnesses.
4.4. Observance of the principle of presumption of innocence
The right to presumption of innocence means that anyone accused is presumed
innocent until his guilt has been established by a competent court. It is up to
the prosecution to prove that the offence was committed by the accused. The
corollary to this rule is that where there is lack or insufficiency of evidence
to convince the judge, the doubt should benefit the accused. Article 19 of the
ASF, Monitoring of Gacaca Courts, Report n°4, Op. Cit., p.28.
Such is the case in the jurisprudence of the International Criminal Tribunals for Rwanda
104
105
and former Yugoslavia regarding sex crimes. The International Criminal Court applies the
same principle of holding proceedings in camera for such crimes.
106
ASF, Monitoring of Gacaca Courts, A nalyti cal Carryforward n° 2, October 2005
September – 2006, p.29.
132
Constitution of the Republic of Rwanda of 04 June 2003 as amended to date
establishes this right in these terms: “Every person accused of a crime shall be
presumed innocent until his or her guilt has been conclusively proved in accordance
with the law in a public and fair hearing in which all the necessary guarantees for
defence have been made available.”
As we have already said, in the context of Gacaca trials that took place fourteen
years after the facts, the judges relied heavily on the testimony adduced by
the accused persons, victims and the population as a whole. Respect for the
presumption of innocence in such a setting, requires the judge to conduct
debates objectively in order to be able it to clearly establish individual criminal
responsibility in material and intentional terms. S/He must also assess the
confessions of the accused, whether the facts confessed meet the conditions
set by law and whether the statement of the accused is true107.
It should be noted that persons appearing before Gacaca courts continue to enjoy
the presumption of innocence even in the event of a confession or guilty plea. In
such cases, in fact, the trial court is called upon to make certain checks to ensure
that the requirement of presumption of innocence has been met. It is the duty of the
judge to verify the voluntary nature of the admissions made by the suspect, whether
the confession or plea of guilty was free and conscious.
The challenge facing Gacaca courts in the difficult management of genocide
cases was to conduct their work without presumption of guilt to the detriment of
defendants. By observing the early stages of progress of the work of Gacaca courts,
we find that the presumption of innocence was the major concern of the authorities
and relevant public services in the management of the Gacaca process.
Indeed as we have already had occasion to point out, before the launch of
Gacaca process itself (from 2001), the National Public Prosecution Authority108
had organized meetings to present of the detained suspects to the population,
with the aim of regularizing the situation of many of them who did not have
files and those whose files it was necessary to supplement.
Articles 63 and 64 of Gacaca Law.
Formerly called Parquet Général de la République
107
108
133
Thus, during the first days after the genocide, most arrests were not made
under the rules of procedure. They led to the imprisonment of people suspected
of involvement in genocide, without first preparing case files for them. This
situation which was due to the exceptional context of the aftermath of genocide
had violated the presumption of innocence of suspects and was corrected
by the Public Prosecutor before the start of Gacaca courts. Presentations of
detained suspects to the people responded to this need and helped to rule
publicly on the innocence of some suspects.
As we showed in the previous chapter, the presentations of those detained took
place at the scene where the suspects were alleged to have committed crimes
and the people was invited to say publicly what they knew about each suspect.
After this, those who had been fully discharged were released temporarily,
while others had their files completed according to the information received.
According to PRI, «these presentations were interpreted by people as a sign
that real work had begun on the establishment of every suspect’s individual
responsibility, to be prosecuted under Gacaca109.” In fact, this stage of
presentation was very important because it allowed not only to preserve the
presumption of innocence of the accused, but also to test the ability of people
to participate in Gacaca courts and participate in the organization of trials.
Regarding the ability of Gacaca courts to uphold the principle of presumption
of innocence, it is clear from the results of this study that 90% of respondents
said that the judges were active in the conduct of trials, by checking all
information contained in the indictments as well as that which the judges
obtained during hearings. 55% gave specific situations they had experienced;
for example Inyangamugayo who performed additional procedures, to ensure
that the material facts were actually established and that the participation of
the accused was proven. According to these people, Inyangamugayo judges
have sought to supplement, verify and consider the information they had at
the time of trial. Based on these survey results, we can say that the rules
governing the presumption of innocence of the accused were respected by the
Gacaca courts.
PRI, Summary report of monitoring and research on Gacaca, January 2002 – December 2004
109
134
4.5. Observance of the right to a substantiated judicial decisions The obligation of the judge to substantiate his verdict means that s/he must
tell the public the factual and legal grounds that convinced him/her to make
the decision. This obligation is a guarantee against arbitrariness. As regards
Gacaca courts, another element is added to the obligation to state reasons. The
judge must also give grounds for his acceptance or rejection of confessions
that were presented by the accused.
The obligation of the judges to give reasons for their decisions is rooted in
Article 141 paragraphs 1 and 2 of the Constitution of the Republic of Rwanda
as amended to date. It stipulates that:
“Every court decision shall indicate the grounds on which it is based, be
written in its entirety and shall be delivered in open court.”
This right is also provided by the Gacaca law as supplemented and amended
to date in its various articles, especially Article 25 which states it in these
terms:
“Judgements must be motivated. They are signed or marked with a fingerprint
by all members of the Court who have seated in the proceedings and ruled
on them.”
As for Article 67, it gives details on the criteria which must be taken into account
for the substantiation of judgements given by Gacaca courts, namely:
“1° the Court that has passed it ; 2° the names of Seat members who gave
rulings; 3° the identity of the parties to the trial; 4° charges against the
defendant; 5° the facts presented by the parties; 6° the motives of judgement; 7°
the offence of which the defendant is found guilty; 8° the penalties pronounced;
9° the identity of the victims and the inventory of suffered offences; 10° the
presence or absence of the parties; 11° if the hearings and the pronouncement
of judgements were made public; 12° venue and date for judgement; 13° the
provisions of this organic law which have been applied; 14° the legal period
for appeal”
135
In general, the Gacaca courts have done this work with the required quality.
Indeed, 92% of the cases examined in this study demonstrate that they are
sufficiently substantiated in fact and in law and contain no real gaps. They
show that the people understood and accepted the decision as the result of
views that were exposed either by the parties or by witnesses and by the
general public during the hearings. Moreover, 84% of respondents during
the conduct of the study reported being satisfied with the course of justice
delivered by the Gacaca courts. They were also satisfied with the ability of
judges to give grounds for their verdicts.
In addition to this information on respondents’ opinions, analysis of archived
trial files reveals a similar pattern in approximately 86.4% of the trials,
where it was observed that the verdicts matched the facts of the case and the
provisions of the law. These results demonstrate that the judgments of the
Gacaca courts were not the fruits of imagination. They are the culmination
of a legal process based on established material facts and applicable rules of
legal procedure.
In its various reports, the NSGC further reveals cases where miscarriages of
justice were found in terms of inadequate substantiation or poor judgment.
These were subsequently corrected, either by higher courts or by retrial.
For example, an error was made by Inyangamugayo judges of Nkumbure
Gacaca Court in Nyamagabe District. What happened is that they classified
the suspects in the second category whose alleged acts as notorious murderers
placed them in the first category. The judges acknowledged the error and it
was corrected in an appeal court110.
4.6. Summons and trial of people in high places
The population of Rwanda, in general, appreciated the fact that people once
regarded as influential, wealthy (politicians, high-ranking civil servants and
prominent business people), were called either to provide information during
the data collection phase or to testify during the trials or to answer charges
against them in the context of the Gacaca courts process
NSGC, Annual Report 2007, p.13. The reports for 2006 contain other cases indicating
similar miscarriages of justice that were subsequently corrected.
110
136
This non-selective justice was seen as a strong sign of the end of impunity. It is
important to remember that impunity had characterized the regimes that ruled
Rwanda since Independence. When they were involved in criminal activities,
political leaders and their wealthy sponsors never had to face justice.
Politicians, senior officers of the Army and Police and leaders of religious
denominations appeared before the Gacaca courts, creating a precedent in the
fight against impunity. Among these historic trials are that of Major General
Laurent Munyakazi, who had to appear before the Rugenge Gacaca court,
that of Brigadier General Seraphin Bizimungu, alias Mahoro, before the
Nyagatare Gacaca court and that of Major General Paul Rwarakabije before
the Kacyiru Gacaca court.
Regarding political figures include appearances of Deputies like Alfred
Mukezamfura (then President of the Chamber of Deputies), Jean Baptiste
Butare, Elysée Bisengimana, Julienne Kabanyana, Béatrice Nirere, Etienne
Magari, Emmanuel Mwumvaneza, Desiré Nyandwi, Anselme Nshizirungu
(former Colonel in FAR) and Senators Anastase Nzirasanaho and Stanley
Safari. Some Prefects of former provinces also appeared before the courts,
such as Augustine Hategeka in Muhanga and Boniface Rucagu in Burera.
These trials and / or appearances by dignitaries before the Gacaca courts were
perceived by the population as a manifestation of the equality of citizens
before the law and a lesson in the fight against impunity
4.7. Execution of the judgments rendered by Gacaca courts
It should be clear from the outset that the enforcement of judgments is not
within the competence of Gacaca courts, and therefore the successes and
shortcomings found during this study cannot be attributed to the NSGC and
the judicial process of Gacaca courts. However, we decided to include this
in our report, because the execution of sentences of the Gacaca courts is an
important indicator of the fight against impunity.
137
Moreover, it is clear from the responses obtained in the course of our study,
that the execution of judgments of Gacaca courts is a key contribution to the
change of perception of the concept Gacaca new. In fact, it appeared that the
new Gacaca procedure instilled in the minds of people, that genocide does not
distinguish between the petty criminals and mass killers because the sentences
against genocide crimes was no longer limited to designers and planners of
genocide. It should be stressed that this was the case in the Nuremberg trials
and it had gone well. Instead, the Gacaca courts tried all genocide suspects,
big and small, planners, perpetrators accomplices and those who had engaged
in looting and destruction of property belonging to victims.
In the genocide trials performed by Gacaca courts, the penalties imposed
included, besides imprisonment, the sentence to community service and
compensation for looted and/or damaged property. The last two are the ones
that pose the most problems in relation to the objective of fighting against
impunity. For this reason we are going to examine in the next section.
4.8. Compensation of property
The looting and destruction of Tutsi property were part of the plan of genocide
and were, like the Genocide itself, encouraged by the administrative and
military authorities. Just like the Genocide, crimes against property were
massive, systematic and widespread. Under the ideology of the time, through
the destruction and grabbing of property belonging to Tutsis, genocide
perpetrators wanted to remove every trace of their victims. As highlighted by
PRI:
“The looting during the 1994 tragedy was very complex: it was massive and
largely organized hierarchically. A significant proportion of the population
participated, but to very different degrees of responsibility. Some members of
gangs killed and looted and destroyed to enrich themselves, but also in the
hope of removing all traces of the genocide victims” 111.
PRI, Report of monitoring and research on Gacaca: trying the perpetrators of offences
against property committed during the genocide, the contrast between the theory of
compensation and the socio-economic reality of Rwanda, July 2007.
111
138
It should be observed that the law provides that authors of such damages
should only be sentenced to compensate according to Civil Procedure. The
looting is regarded as a matter for reparation or compensation rather than for
punishment in the criminal sense. In most cases, these reparations are of a
financial nature consisting of monetary compensation for damage to property.
Often, victims and looters discuss among themselves and reach an agreement
for compensation.
But quite often, the parties fail to reach an agreement and it is up to Cell
Gacaca courts to decide within the jurisdiction granted to them by section 41
of the law governing Gacaca courts. Property valuation is made according
to the value it has at the time of trial. The judgments of condemnation to
compensation have significant value in the eyes of the victims. They are
regarded as legal recognition of their status as victims and restoration of their
violated rights.
With regard to the actual execution of judgments relating to property, 67%
of respondents believe they are executed in accordance with court rules.
52% of people who were sentenced to reparation indicate that they fulfilled
their obligations smoothly and on schedule. 40% of those convicted in trials
involving property gave no response and most of them had failed to give
compensation on time. This level of abstention shows that the rate of default
on judgments rendered by the Gacaca courts is still high at the time of this
survey.
In the category of victims, only 8% of respondents agreed that the judgment
of compensation was performed in accordance with the decisions of the
judges, on schedule and without complications posed by convicted. This low
percentage of victims who are satisfied with the enforcement of judgments in
the third category is a handicap in the fight against impunity.
Thus, we noticed during our research, that the issue of compensation of property
is a real challenge that brings back discomfort and tension. Sometimes in fact,
it lays heavy doubt on the sincerity of those who asked for forgiveness for the
participation in the Genocide since people sentenced to restitution of property
139
are mostly those who resorted to the procedure of confession, guilty plea,
repentance and asking for forgiveness.
When asked about the reluctance of those convicted for not having resituated
looted property, genocide survivors say they do not understand how on one
hand a person who loudly claimed to have repented for involvement in the
killings can turn around when it comes to giving testimony on the looting of
property, and try to hide the truth. On the other hand, they do not understand
how those who accept their wrong before judges, or those who are sentenced
to compensation at the end of a hearing, refuse or fail to obey court orders.
It should be noted at this level that the NSGC intervened to give instructions
regarding condemned people who were too poor to give compensation in
order to spare them from sinking further into misery. In fact, the NSGC has
issued Instruction No. 14/2007 of 30/03/2007 relating to compensation for
damage to property during the genocide and other crimes against humanity
committed between 1 October 1990 and 31 December 1994, in which account
is taken of an individual’s material reality
In Article 7, the Instruction provides that the share of property whose seizure
would reduce the debtor to destitution and make him/her a burden to the
community cannot be taken away. Thus, the home of a pauper, an acre of
land for cultivation essential to survival of self and family, sleeping items and
clothing may not be seized. It should be noted all the same that this protection
measure does not definitively remove the obligation to give compensation.
Just because the instruction protects the destitute debtor, it does not mean
that those who committed looting are exonerated from compensating their
victims as provided by the law.
If the author has no possibility to restore or compensate for the damage in money
terms, there is a provision to pay back in terms of in days of work to the benefit
of victim. In such cases where condemned were poor, he authorities responsible
for enforcement of judgments urged them to reach an agreement with the victims
for compensation in kind. Such compensation in kind to replace monetary
compensation involves activities such as agricultural or construction work.
140
Another important aspect of the enforcement of sentences relates to
Community Service(TIG) as an alternative to imprisonment. Community
Service is done by convicts in the second category, found guilty of genocide
as authors, co-authors and accomplices. Besides the fact of belonging to the
second category, the law states that the people liable to this alternative penalty
are defendants who acknowledged their crimes. The Organic Law of 19 May
2008 provides that:
“A person sentenced to both a custodial sentence and to serve community
service shall first serve community service and if it is proved that the work
was exemplary executed, then, the custodial sentence shall be commuted into
community service.”
It can be concluded that in general the TIG is a mechanism to fight against
impunity, which is a good alternative to imprisonment not only because the
prisons could not accommodate all the convicts, but also was a positive step
towards their reintegration. We should also add that the fight against impunity
was concretized by sentences of imprisonment handed out to first category
convicts and those of the second who did not plead guilty.
The fact that all those known to have damaged property were brought to
justice whether they were of the second category that confessed or did not, or
even those of the first category. They were condemned and obliged to serve
their sentences in accordance with the law. Because of this, it was built in
the collective memory of Rwandans that from now on, the crime of genocide
is punishable whatever the number of people implicated, the extent of the
crimes and the degree of destructions.
4.9. Difficulties encountered in the fight against impunity
The Gacaca Courts process encountered all sorts of difficulties in connection
with the fight against impunity, which were exacerbated by the fact that
the criminals were from all levels of society. Thus there was persistence of
the genocide ideology, intimidation or the harassing of the witnesses and
the judges, destruction of the books containing information on the crimes
committed, exiles and change of addresses by the suspects, etc.
141
As we have shown in the chapter on access to the truth, one of the peculiarities
of the Genocide against the Tutsi is the massive participation of thousands of
ordinary citizens, political leaders, government officials, and opinion leaders,
military and religious leaders. Consequently, some of these suspects who had
received roles in the Gacaca courts and who had charges against them, tried
to undermine the proper functioning of Gacaca courts. For example, they
tried to influence the decisions of judges and discourage witnesses and their
relatives or friends from giving testimony against them. The persistence of
the genocide ideology and its trivialization of genocide encouraged people to
remain silent about the crimes committed. This resulted into some criminals
escaping prosecution.
Another major difficulty was the intimidation and harassment of witnesses and
judges. In the following paragraphs, we analyse the crimes committed against
genocide survivors, witnesses and judges at different times of the Gacaca
process. Between October and December 2003, the NSGC recorded sixteen
(16) cases of insecurity and threats faced by genocide survivors, prosecution
witnesses and Inyangamugayo judges, including the killings mentioned
earlier, committed in Kaduha, Nyamagabe District112.
In 2004, the NSGC reported the same problems suffered by survivors of
genocide, prosecution witnesses and Inyangamugayo judges. We note for
example the killing of witnesses Nyemazi and Rutinduka in Kaduha, arson of
houses, vandalism against fixed and moveable property, throwing of stones
at houses, acts of denigration, harassment and intimidation, beatings, injuries
and other criminal acts113.
In 2005, the NSGC noted persistent perpetration of similar criminal acts.
It highlighted the six most notorious examples including the killing of a
Genocide survivor named John Muhinda in Kabuga Sector in Kigali City on
the evening of 31/10/2005. The National Service also reported incidents of
aggravated assault, throwing stones at houses of survivors and prosecution
witnesses and other acts of intimidation, throwing human faeces or blood at
the homes of genocide witnesses and survivors���.
NSGC, Annual Report of activities 2003, pp 14-19
NSGC, Annual Report of activities 2004, p 28.
114
NSGC, Annual Report of activities January-November 2005, p. 4-5.
112
113
142
During the following year, the NSGC noted in its semester report for January
to June 2006:
“In the past six months, here and there in the country, criminal acts continued
to be committed against genocide survivors and witnesses.”
The report said thirty four (34) cases - while acknowledging that they were not
exhaustive - they involved mostly blatant breaches of the security of genocide
survivors and witnesses, committed during that six-month period, and only
thirteen cases (13) of intimidation and threats against Inyangamugayo judges.
These acts were characterized by particular humiliating and hurtful remarks,
threats of murder and attempted murder, assault, poisoning, fabricating false
evidence against the prosecution witnesses and vandalism against fixed and
moveable property115, etc.
During the second half of 2006, the NSGC observed the same acts of which
nineteen (19) were against genocide survivors and prosecution witnesses, including
two murders, and sixteen (16) were against Inyangamugayo judges including
one attempted murder which caused permanent disability to the president of the
Gacaca court of Kavumu Cell, Nyarubaka Sector in Kamonyi District 116.
During the same year 2006, LIPRODHOR reported seventeen (17) murders of
genocide survivors after they had given evidence in Gacaca courts. In 2007 the
same organization, quoting figures obtained by the Commission for Witness
Protection of the National Public Prosecution Authority, gives the figure of 25
murders and 20 attempted murders of witnesses during that year117.
Regarding just the year 2007, the NSGC welcomed the fact that serious steps
had been taken by the competent authorities to stop acts of infringement
against the security of survivors, witnesses and Inyangamugayo judges, while
regretting that this phenomenon persisted despite all the efforts implemented.
Thus, twenty (20) cases of criminal acts against genocide survivors and
witnesses were identified, and thirteen (13) others against Inyangamugayo
NSGC, Quarterly report of activities January – June 2006, pp. 4-10.
NSGC, Quarterly report of activities July-December 2006, pp. 5-10.
117
LIPRODHOR, Problems of information and testimonies before Gacaca Courts, Report,
115
116
December 2006.
143
judges118. These acts were often exerted by the accused or the members of
their families, to instil fear among the victims and the witnesses so that they
would not give testimonies during the genocide trials.
It must be emphasized that for all these criminal acts, prosecutions were
carried out by competent authorities, and in a number of cases, suspects were
arrested, tried and convicted119. For example, during the first half of 2006, 761
people were arrested for criminal acts they had committed against genocide
survivors, witnesses and Inyangamugayo judges 120.
Regarding the change of address or the flight of suspects to foreign countries,
we noted that the persons on lists of suspects had moved from their homes or
had exiled themselves to foreign countries to escape from prosecution from
Gacaca courts. This has undoubtedly hindered the fight against impunity
because important suspects, most of whom are those classified in the first
category, are still at large, and wanted by the courts. The escapes of these
individuals began with the Gacaca process, but they increased significantly
in the year 2006 which corresponded with the making of lists of suspects,
their categorization, and the preparation of case files and their transmission to
competent courts121.
During 2006, the NSGC recorded 31 cases of people suspected of having
committed genocide, who fled either to foreign or to other parts of the country to
escape the Gacaca process122. Most of these people are in neighbouring countries
such as Burundi, Tanzania, Uganda, the Democratic Republic of Congo, or Kenya.
Others settled in Malawi, Zambia, Mozambique, Angola, Congo Brazzaville,
Gabon, Cameroon and the Central African Republic. After realizing this, efforts
were made by various bodies to arrest and prosecute these suspects.
NSGC, Annual Report of activities 2007, pp. 6-13.
All NSGC reports of activities relating to criminal acts indicate also the measures taken
118
119
to seek and punish the culprits.
NSGC, Quarterly report of activities January – June 2006, p.3.
121
NSGC, Quarterly report of activities, January – June 2006.
122
NSGC, Report of activities January – June 2006, pp. 10-11 et July – December 2006 pp.
120
15-17.
144
Regarding the falsification of facts, we noted that some Inyangamugayo judges
tried to modify information, either by changing the contents, or by rewriting it
to falsify the authentic testimonies received from witnesses123. In other places,
there was disappearance of the exhibits in certain files, the destruction of the
files and the removal of some charges in the books containing the information
collected on them124.
Thus, the president of the Gacaca Court for Busogo Cell in Busogo Sector
hid more than 117 case files involving members of her family, friends and
officials of the former regime. The files were found and are currently before the
Gacaca courts of Muhoza. When the information that was collected could not
be retrieved, there was new collection of information from former witnesses.
4.10. Partial conclusion
When Gacaca courts were established, they had to fight against the culture
of impunity for serious crimes which had settled in Rwanda since 1959. On
one hand, victims expected that all suspects were to be brought to justice and
serve their sentences. On the other hand, the suspects had the right to receive
a fair trial.
It can be asserted that the Gacaca courts have responded to this, based on the
main procedure they used: the fact that the trials took place at the scene of
crime helped to increase our knowledge of what took place and to establish
individual responsibility, since the evidence was publicly provided by
members of the same community.
Therefore, in view of how the Gacaca process gave the greatest importance
to the active participation of the people, the culprits were known, tried and
convicted on one hand. On the other hand, the innocent were acquitted and
released after a legal debate involving all the parties concerned. In the light of
our investigation, it can be said that even in quantitative terms, the respondents
confirmed by 86.4% that the Gacaca process achieved this goal by putting to
trial thousands of people within the provisions of the law.
NSGC, Quarterly report of activities July - December 2006, p. 10 et p. 13.
NSGC, Quarterly report of activities July - December 2006, p.14; NSGC, Annual Re-
123
124
port of activities 2007, p.14, 17 and 18.
145
CHAPTER V
THE CONTRIBUTION OF THE GACACA PROCESS TO
NATIONAL RECONCILIATION
5.1. Introduction In addition to the objective of fighting against impunity, the Gacaca process also
aimed at contributing to the national reconciliation. This means restoration of
peaceful coexistence and good social relations between Rwandans and more
particularly between genocide survivors and those who committed genocide
in 1994. In this chapter, we shall discuss the definition of the reconciliation
process in the Rwandan context, the issue of post genocide reconciliation,
the contribution of the Gacaca process in the reconciliation between families
of genocide survivors and those who committed genocide as well as the
challenges encountered.
5.2. The definition of the reconciliation process in this research
What is meant by the concept of reconciliation in this study? This concept is
currently referred to on a frequent basis given the fact that violent conflicts
are rampant worldwide. However, the fact that the term «reconciliation »
is frequently mentioned in scientific literature does not imply that there is a
consensus regarding its definition.
The term is commonly used without prior definition as though its meaning
should be obvious. However, careful analysis of literature shows that the
concept originates from many different concepts of post-conflict reconciliation.
For example, in most literature inspired from analysis of political conflicts,
the term implies to the parties that share equal responsibility and wrong doing
regarding the emergence and development of the crisis.
146
This approach also known as the minimalist approach by Verdaja125 presumes
that the resolution of a conflict is attained by a sort of mutual understanding
in which the protagonists agree on a minimum number of moral rules to
abide by so that the society may live on without harming one another. Such
a concept is adapted to a context where the reconciliation process involves
political parties or armies in a stale mate, and where the protagonists agree on
a code of conduct to observe in order to avoid further conflict. This kind of
reconciliation is mostly implemented at political or institutional level.
It is clear that this concept is very different from the post genocide
reconciliation process in which victims from one ethnic group or religion
or a clearly identifiable national minority were systematically identified,
labelled and exterminated without having taken part in the conflict. In these
circumstances, there is a large moral debt toward the victims and survivors
while they themselves owe nothing to those who prepared, planned and
carried out the mass killings.
According to the Verdeja definition, the reconciliation process involved in
such a context falls squarely on an interpersonal perspective in which access
to the truth leads those guilty of the crimes to make genuine repentance and
the victims to grant forgiveness. This is the only way that can eventually lead
both groups to mutual healing from the trauma caused by the genocide.
It was this maximisation approach that dominated the Gacaca process in
that the reconciliation process between the 1994 genocide survivors and
those convicted by the Gacaca Courts was mainly achieved through their
admission of guilt which was sometimes followed by requests for forgiveness
and acceptance of the apology by the families of the survivors. It is through
this forgiveness that the process contributed to good interpersonal relations
by decreasing the animosity and hostile conduct between the survivors and
those convicted of genocide crimes and between their families. The calm
atmosphere achieved through access to the truth, the request and granting of
forgiveness is the foundation of the national reconciliation process.
Verdeja, E., Unchopping a tree. Reconciliation in the aftermath of Political Violence,
Philadelphia, Temple University Press, 2009.
125
147
Regarding the analysis of the contribution of Gacaca Courts to the reconciliation
process, our position was inspired by the theory of Verdeja126 which states that
reconciliation involves a change at all relational levels including: inter-personal
relations, inter-group relations and inter-institutional relations. According
to this author, reconciliation requires transformation of social relations that
allows members of the community to live together peacefully and to share the
important daily life motions again. This concept is also shared by MacLean
according to whom reconciliation is “the end of division and hatred between
individuals or groups”127.
5.3. The challenge of reconciliation in a post genocide context
Between April and July 1994, Rwanda was the arena for one of the most brutal
genocides in the history of mankind since it claimed over one million lives
in just three months. Following this drama, there was a deep and perceptible
division between the survivors and those who committed the genocide and
between their families. This situation created an atmosphere of distrust
throughout the country.
Despite the efforts of the Government of National Unity through the National
Unity and Reconciliation Commission after the genocide, the main challenge
was to restore trust and to restore good social relations between the people.
After the genocide, the following legal institutions pursued the perpetrators
of the genocide: The International Criminal Tribunal for Rwanda (ICTR),
Foreign courts with International Jurisdiction as well as ordinary criminal
and military courts in Rwanda. However, none of the above specifically
integrated national reconciliation into their mission. Nonetheless, it appears
in the preamble of the Law governing Gacaca Courts as one of their principle
objectives.
Verdeja, E., Unchopping a tree. Reconciliation in the aftermath of Political Violence,
126
Philadelphia, Temple University Press, 2009.
Maclean, I.S., “African Truth and reconciliation Commission”, Religion & Theology
6(3), 1999.
127
Maclean, I.S., “African Truth and reconciliation Commission”, Religion & Theology 6
(3), 1999.
148
It should be noted that these courts were inspired by traditional methods that
were used to resolve conflicts between members of the local community. They
were then supplemented by legal provisions that granted them the authority
to try genocide cases. Given the terms of reference of this evaluation, the
research was supposed to reveal evidence of the contribution of Gacaca
Courts to the process of national reconciliation.
Therefore, having clarified the concept of reconciliation and having described
the expected impact of this process, here is the degree to which the fourth
objective assigned to Gacaca Courts was accomplished.
5.4. Contribution of the Gacaca process to national reconciliation
The central question that guided our investigations in the field was aimed
at revealing whether the Gacaca process had a positive impact on national
reconciliation. It was also aimed at determining whether the revelation of the
truth about the atrocities committed might have had the effect of increasing
the antagonism between the families of the survivors and those found guilty
of participating in the genocide.
5.4.1. Positive changes induced by the Gacaca process with regards to
relations between the families of survivors and those convicted of genocide
crimes
During our investigations in the field, we sought to reveal whether there
were any noticeable changes in the social relations between families of the
survivors and families of those convicted of genocide crimes. We compared
the relational situation after completion of the work of Gacaca Courts with
the situation before the start of the process. The diagram below illustrates the
quantitative results obtained in relation to this aspect:
149
Diagram N° 19: Positive changes in relations
87.30%
Yes
6.60%
6.10%
No
Noanswer
Source: CCM Survey, December 2010.
It shows that 87.3% of the respondents indicated that there was indeed a
positive change contributed by the Gacaca courts regarding the relations
between genocide survivors and genocide perpetrators and between their
respective families. It should be noted that 6.6% of the respondents indicated
that there was no change in the co-existence or relations between the categories
mentioned above and 6.1% did not give their opinion on the matter.
Among the points made by those who indicated that the Gacaca process has
indeed improved relations between families of the survivors and families of
those convicted of genocide crimes, the most common points were that; the
Gacaca process separated the truth from the lies and revealed the specific
circumstances of deaths of the victims as well as the locations where their
remains had been disposed of so that they could be buried with dignity.
The Gacaca process reduced the frustration of the survivors regarding the
unknown fate of their loved ones; because they now knew the circumstances
of the deaths of their family members and the atrocities they endured. Access
to the truth generally reduced the degree of suspicion and consequently led to
150
the restoration of more or less normal social relations between the families of
survivors and their innocent neighbours who had previously been suspected
of betraying the victims. Therefore, the Gacaca process prevented the
generalization of guilt by distinguishing the innocent from the guilty.
Regarding the relations between families of the survivors and those known
to be guilty of participating in the genocide, the reconciliation process
depended on several factors, mainly; revelation of the truth about their role
in the massacres, genuine repentance, preparing for face-to-face meetings
by sending respected and credible messengers to request the survivors to be
present during the confessions of guilt.
It is interesting to note that the guilty pleas and requests for forgiveness
presented to victims (even through emissaries) before the detained suspects
were informed of the advantages of this process in sentence reduction were
better received by the survivors, this in itself was already an indication of
genuine reconciliation.
At the practical point of view, the Gacaca process set the investigations in
motion as soon as the confessions of the detainees were recorded. In addition
the process also ensured reduced sentences for those who voluntarily confessed
within the window period provided for by the law.
Finally, the respondents also stated that the reimbursement for damaged
property was another step towards reconciliation. Another factor in favour of
improving relations is that Rwandans have understood that even in a context
of mass criminal activity that was sanctioned by the Government, not only are
crimes against human beings punishable but also destruction of property is a
punishable crime.
For the 6.6% of the respondents who stated that the Gacaca process did not
contribute to durable reconciliation, their reasons include the unfair fate
suffered by children of those who are known to be guilty of committing
genocide. They argued that the fact that their parents are in prison results
in their poverty and vulnerability which is caused by the survivors and the
151
witnesses. One could conclude that this category of respondents is biased
because they have no consideration for the orphans, widows and widowers
who also lost everything including their loved ones.
Others expressed their continued resentment for people who were released
from prison. They were infuriated by the prosecution witnesses who revealed
their actions during the genocide. This type of conflict is particularly difficult
to resolve because it included cases in which a wife would testify against her
husband and vice versa or children would testify against their parents, uncles,
grandparents or other close family members. The same situation applied to
some survivors who were prosecution witnesses and got stigmatized by their
neighbours as well as the family and friends of the convicted individuals.
Another very common argument was about the adamant extremism expressed
by some of the individuals who were guilty of committing genocide even
after completing their sentences. They severed any possibility of contact with
the survivors and tried by all means to avoid paying for the property they
looted. Such situations mostly arise when the survivors do not have the means
to pressure the debtors to honour the court’s decisions.
Some survivors feel that whatever the Gacaca process contributed to the fight
against impunity; provided access to the truth or accelerated the trials, the
law still clearly provides advantages to the guilty and offers them reduced
sentences yet they voluntary committed atrocities beyond comprehension and
the crime of genocide is immutable and is difficult to pardon.
Other respondents pointed out that the startling and raw nature of the
revelations of the truth that occurred during the Gacaca process compounded
the psychological trauma of the survivors and their families. It seems this
caused some families to withdraw into themselves and avoid any contact with
individuals released from prison for dialogue.
Despite these considerations which indicate that the Gacaca process did not
solve everything in the relations between survivors and genocide perpetrators
as well as their respective families, a great step has been taken in this regard
152
nonetheless. The Gacaca courts significantly contributed to alleviation of
the atmosphere of suspicion and facilitated the reconciliation of the families
mentioned above.
As it is, the results obtained are very close to the indicators of the national
reconciliation guidelines since the proportion of people who agree that the
Gacaca process has contributed to the strengthening of national reconciliation
was 87.3% while the proportion of the respondents of this category targeted
in the projection of the national reconciliation guideline was 85.4%.
In a context of genocide atrocities in which the victim is known to have
suffered all kinds of violence, the request for forgiveness most often refers
to general recognition of the genocide crimes committed during this period.
Hence the importance of examining the impact of confessions of guilt and
seeking for forgiveness by released prisoners on the reconciliation process.
5.4.2. Benefit of confessions and the guilty plea in reconciliation
It should be noted that some detainees had already confessed even before they
were educated about the reduced sentences associated with confessing the
truth. Worn down by the guilt of having betrayed or killed their neighbours,
childhood friends, even parents, some detainees sent messengers to the
survivors to inform them about the fate of their family members. They had
developed so much remorse that they confessed the details of their roles in
killings. As mentioned earlier, these “spontaneous” confessions had a greater
impact on the start of the reconciliation process than those made officially in
public during the trials. It could be argued that at this point the accused knew
that there was no longer any way to hide the truth.
Our research method was initially interested in examining the quantitative
results obtained on the subject of analysis mentioned above. Next, we classified
the reasons that motivated the accused to request for forgiveness and finally
we examined the extent to which these reasons contributed to reconciliation
between their families and the families of the survivors.
153
Diagram N° 20: Impact of requesting for forgiveness
91.80%
Yes
4.00%
4.20%
No
Noanswer
Source : CCM Survey, December 2010.
As illustrated in the diagram above, 91.8% of the respondents stated that
they witnessed cases where the accused made public requests for forgiveness
during the proceedings of Gacaca Courts, 4% stated that they did not witness
any cases where the accused requested forgiveness and 4.2% did not respond
to the question.
When evaluating the reasons that motivated the accused to request forgiveness
during Gacaca Court hearings, we found out that of the 3527 respondents
interviewed in the survey, only 893 (25.3%) felt that the apologies were heartfelt
or originated from real feelings of guilt. The remaining proportion, i.e. 74.7%
considered the requests for forgiveness made by the released detainees to be
primarily due to external factors including government sensitization which
was mentioned by 853 people i.e. 24.2%. Others felt that the motivation was
based on the significant advantages involved such as reduced sentences this
was stated by 331 people i.e. 9.4% of the respondents. Some pointed out the
role of different religious and faith based messages that also motivated some
of the confessions of guilt.
154
Regarding the contribution of confessions to the reconciliation of Rwandans, it
was evident that the sincerity of the confessions and apologies was obviously
a determining factor in the reconciliation of the social groups mentioned
above. Consequently, when the survivors felt that a request for forgiveness
was entirely motivated by external factors, the contact was harder to establish
and the social relations established would remain superficial and collapse at
the slightest dispute. For most of them the public requests for forgiveness that
were made after the sensitization sessions did not really carry any weight if
the released prisoner does not make an individual attempt to approach the
victims who endured the acts of violence.
This scepticism against public confessions that are not followed by personal
apologies is for example reflected in the comments made by one of the survivors
interviewed during our research: “During the Gacaca court hearings, many
people requested for forgiveness but one cannot know whether these apologies
were truly genuine, maybe they did it to have their sentences reduced or simply
because they had no choice.” This respondent was not convinced about the
sincerity of the apologies which led to the following resignation: “since we
could not search their hearts, we forgave them so as to preserve our mental
health”.
Let us now consider the extent to which the requests for forgiveness contributed
to consolidating national reconciliation.
5.4.3. Contribution of the request for forgiveness to consolidating the
process of reconciliation
During our field investigations we were interested in determining whether
the Gacaca courts provided a favourable atmosphere to facilitate the granting
of forgiveness or whether the sudden revelations of the truth complicated the
process even further. We believe this question is fundamental since in our
opinion, the request and granting of forgiveness is a definite sign of good
social relations being restored.
155
For this subject, we investigated whether the respondents knew of any specific
cases in which families of survivors did forgive those who killed their family
members or looted their property. The table below indicates the quantitative
results obtained:
Diagram N° 21: Information on specific cases of forgiveness
80.00%
12.20%
Yes
No
7.80%
Noanswer
Source: CCM Survey, December 2010.
As indicated in the table above, 80% of the respondents stated that they knew
specific cases where families of survivors forgave those known to be guilty
of participating in genocide crimes after they clarified their roles during the
Gacaca court hearings. 12.2 % of the respondents stated that they did not
know any specific cases where forgiveness was granted in their jurisdictions,
whereas 7.8% did not respond to the question.
Regarding the reasons that motivated the survivors to grant forgiveness, the
following answers were the most common: revelation of the truth about what
happened and the recognition of personal responsibility in genocide atrocities.
In this regard, the revelation of what happened during the public Gacaca
hearings; the denouncing of co-perpetrators and accomplices had a healing
effect on both categories of Rwandans. During these occasions, the survivors
156
and the guilty were able to face one another as if to confront the reality of the
genocide together.
Others granted forgiveness when the apologies of the accused seemed sincere
and the accused seemed to really regret what they had done. The accused
had to show signs of repentance proving that s/he would never again commit
acts similar to those for which s/he was condemned. Some survivors also
forgave more easily after they were shown the location of the remains of
family members and were able to bury them with dignity.
Some respondents also pointed out that the political environment was
conducive to reconciliation and favoured the granting of forgiveness. They
emphasize the effect of the government sensitization toward survivors to
overcome their pain and actively participate in rebuilding the social fabric that
had been destroyed. Therefore some granted forgiveness as their contribution
to the restoration of society. They felt that they should not be the obstacle to
reconciliation since after all they know more than anyone about the evils of
division. In this same spirit, most granted forgiveness to avoid passing on the
hatred down to their children. They hoped that the granting of forgiveness
would be a building block to national reconciliation, so that their children live
in harmony with others and not in a segregated society.
However, we also note that according to some of the answers, some survivors
granted forgiveness out of resignation. They seem to believe that they had no
alternative course of action since they had already made their confessions to
the State while they were still in prison. According to them, these detainees
only approached them as a formality since they had already been released.
This position is depicted in answers such as these: « I am left alone and I live
surrounded by members of his family, I cannot afford to continue to confront
him because if I get ill who shall accompany me to the hospital ?», or : « we
only forgave in order to survive in a hostile environment », or : « The genocide
is all in the past now and that cannot change, we forgave them because even
if we refused to forgive them, that would not bring back the loved ones we
lost ».
157
These types of answers were most common in areas that are far removed from
urban centres. In these environments that are socially hostile to survivors and
where the released detainees show no obvious signs of remorse after being
freed, the survivors are few and very vulnerable. Finally, some survivors
granted forgiveness by virtue of their religious values, according to them
forgiveness must be granted freely to whosoever shall request it from deep
in their hearts. Now let us examine the contribution of forgiveness in the
reconciliation process as illustrated in the graph below:
Graph N° 22: Contribution of forgiveness to national reconciliation
87.80%
Yes
4.80%
7.40%
No
Noanswer
Source: CCM Survey, December 2010.
As indicated above 87.8% of the respondents stated that the granting of
forgiveness contributed a lot to consolidation of the reconciliation process.
4.8% stated that the granting of forgiveness did not have a significant impact
on reconciliation. This proportion mostly comprises survivors who remain
sceptical about the sincerity of the confessions made by the genocide convicts.
They believe that hardened criminals do not repent truly since there is even no
way to really examine their conscience.
158
Back to the 87. 8% of the respondents, their position is supported by the fact
that receiving forgiveness restores the confidence of the accused and offers
them a door to integrate back into society. With regards to the survivors,
offering forgiveness helped reduce their resentment as illustrated in this
statement from a respondent « By truly forging someone I freed my own heart
and overcame the need for revenge through the power of forgiveness. After I
forgave him, I no longer felt anger toward him and now we can move to the
next step which is true reconciliation».
Having established the positive impact of the Gacaca process in beginning
the national reconciliation process, it is important that we also assess its
limitations.
5.5. Factors that limited the impact of the Gacaca process in the promotion
of post genocide reconciliation
After conducting analyzes relating to the positive impact of the Gacaca
process to national reconciliation, we investigated the factors that limited this
impact.
The first factor raised was in relation to the unique nature of genocide
crimes. In this regard, 41.7% of the respondents stated that as regards the
genocide, reconciliation cannot be based on a « fair exchange » principle.
The latter applies to political conflicts involving warring factions where both
parties share the blame. Therefore, in the context of post genocide conflict
management, the fact that confessions of guilt are not always followed by
granting of forgiveness does not mean that the reconciliation process had come
to an impasse but rather, that the work of reconciliation must be continued.
In most cases where apologies were rejected, it was often due to alteration
of the facts or due to incomplete confessions as illustrated in the statement
from our interview with a survivor: « The confessions of the accused that
we rejected were usually incomplete…we knew everything they had done yet
they only admitted very few facts. Their testimonies were incomplete and they
hoped to mislead us using half truths to obtain our forgiveness». It was evident
159
that these partial confessions were rather harmful to relations between the
survivors and the accused, since they created further grounds for suspicion
and tension.
Other respondents pointed out the fact that reconciliation was compromised
when the survivors discovered the involvement of people who they had never
before suspected of participating in the crimes. Such cases were reported during
the public hearings and resulted in the loss of trust among other consequences.
It should be noted that even after granting forgiveness some families relapsed
into distrust after learning what they considered a great betrayal.
As mentioned in the previous chapters, the murders of genocide survivors and
prosecution witnesses aimed at concealing the truth and was a major blow to
the reconciliation process. As indicated in the data collected during the survey
some people that were tried at the Gacaca courts developed grudges against
the judges or the prosecution witnesses for disclosing the crimes that they
committed. It is evident that these people did not acknowledge their crimes
since they had been convicted according to the law. Moreover, some of the
criminals became even more extremists when they were exposed. In most
cases, their extremism was aggravated by auctioning of their belongings to
pay for property they looted or destroyed during the genocide.
5.6. Partial conclusion
Have the Gacaca courts contributed to the reconciliation of Rwandans, or
did the crude revelations of genocide acts contribute to driving the families
of survivors from the people who were tried at the Gacaca courts? This is the
question that this chapter seeks to explore.
Given the results discussed throughout this chapter, we may conclude
that the Gacaca courts made a real contribution in the initiation of sincere
reconciliation between families of survivors and families of those known to
have participated in genocide crimes. This conclusion is based on arguments
raised at most sites as well as at the sites selected for our research sample.
160
According to the answers received, the Gacaca process allowed for distinction
to be made between the truth and lies, and for clarification of the circumstances
of the death of the victims and helped reveal the location of their remains so
that they may be buried with dignity. The Gacaca process therefore reduced
the frustration of the survivors. Access to the truth generally diminished the
atmosphere of suspicion and consequently promoted the restoration of positive
social relations between families of the survivors and their neighbours who
were innocent. Thus the Gacaca courts also prevented generalization of guilt
by distinguishing the innocent from the guilty.
Regarding the factors that limit the scope of the results achieved by the
Gacaca courts in the area of ​​reconciliation, the most pronounced are the
partial confessions, the harassment of the survivors, judges and witnesses, the
refusal to plead guilty and the persistence of the ideology of genocide.
But whatever these limitations which originate from the inherent fragile
nature of social relations in a post-genocide context, we can conclude that
the Gacaca process fulfilled its mission of restorative justice to an extent
of 87.3%, a percentage that is even higher than the national reconciliation
guideline target (85.4%).
161
CHAPITER VI
THE GACACA PROCESS: AN ILLUSTRATION OF THE CAPACITY
OF RWANDANS TO RESOLVE THEIR OWN PROBLEMS
6.1. Introduction
In reference to the official law governing the creation of Gacaca courts, the
ultimate contribution expected from these courts was to demonstrate the
capacity of the Rwandan people to find solutions to national problems. This
chapter places special emphasis on the originality of the Gacaca process in
the litigation of genocide cases.
To this end, it was expected that the Gacaca process shall compile the input
from local people in gathering information about the crimes committed. Thus,
every village had to participate in order to establish the responsibility of each
member of its community in the planning, organizing and carrying out of the
genocide. This public participation made it possible to compile case files of
suspects that are based on reliable information, which subsequently allowed
the courts to try thousands of cases within a reasonable time.
As provided for in the law governing the creation of Gacaca courts and the
various versions that succeeded it, as the relevant parties gained experience,
the participation of the public was no longer limited to the single role of
providing information. Members of the local community actively participated
in the trial proceedings either as witnesses for the prosecution or for the
defence. They were also invited to participate in the plenary sessions, with
every right to ask questions to enhance the arguments of each party to the
case, so that the truth may come out.
162
In addition, since the local people were most knowledgeable regarding the
integrity or lack of integrity of everyone in their community, they were given
the responsibility to select individuals known to be persons of integrity to
serve as Inyangamugayo judges. We consider the originality of the solution to
conduct genocide trials’ using local witnesses is due to one important aspect:
the complexity involved in gathering information about mass genocide in
which thousands of people from all walks of life participated, and this being
conducted countrywide. This chapter is structured along the four main topics
below:
‘’ The problem of public participation in finding remedies for momentous
consequences of genocide.’’ At this point, we shall place the reader of this
report in the context that prevailed in Rwanda at the time when the Gacaca
process begun.
Adopting a process based on the approach outlined in the methodological
chapter, the second point examines the reception given by parties involved
in the Gacaca courts before their official launch. Then, we shall illustrate
the gradual change of attitudes and outline the factors that contributed to the
success of the Gacaca process.
The third point puts special emphasis on the issue of participation of the local
population and its contribution in achieving the objectives assigned to the
Gacaca process.
The fourth topic which is also the focal point of this chapter is specifically
dedicated to portraying the originality of the Gacaca process and the factors
that contributed to its success.
6.2. The complexity of genocide trials
Although the systematic elimination of Tutsis has all the characteristics of a
planned genocide including the eight stages as defined by Stanton, namely:
classification, symbolization, dehumanization, organization, polarization,
preparation, extermination and denial, the 1994 genocide against Tutsis was
163
unique given the eager participation of thousands of ordinary citizens. Note
that this is why it has also been labelled genocide by “proximity”; in the
sense that many families were killed, betrayed or denounced by neighbours. It
has also been referred to as “internecine” genocide in that some people were
betrayed by their spouses, their children, their fathers or mothers.
In addition, during the critical period of mass killings from April to July of
1994, the denouncing of participation in the murder of neighbours and looting
of their property was futile since these acts were happening everywhere and
were not being punished. Considering the implication to parenting, many
ordinary families found themselves with criminals who participated in either
the planning, organization and especially in the carrying out of genocide.
Consequently, collective guilt resulting from this situation of trivializing
crime affected thousands of families.
In such a context, the decision of the State to entrust the trying of Rwandan
genocide cases to Gacaca courts was easy. According to the Executive
Secretary of the National Service of Gacaca Courts, three fundamental
reasons prompted the government to opt for this decision. The first reason
originated from the realization that ordinary courts could not try the genocide
cases and render justice for the victims and suspects within their lifetime. As
the RPF army advanced on the frontline, the intensity of the killings and their
widespread and systematic nature forced its authorities to establish a special
commission to assess the situation and decide on how to face this tragedy that
was unprecedented in the history of Rwanda.
The Committee came to the conclusion that something out of the ordinary
had occurred. Considering the widespread crimes committed throughout the
country, we had to find an original solution to handle this tragedy, because no
model of conventional justice could provide an effective solution.
Given this situation, a solution was formulated through the law of 30/08/1996.
Specialized chambers were established in the civilian and military courts, the
prosecutors’ offices and the military tribunal for handling cases relating to the
genocide. However, five years after the establishment of these courts, only six
164
thousand trials had been closed, while over one hundred and twenty thousand
detainees were still awaiting trial. On the other hand, Many survivors scarred
by physical and psychological injuries from rape and trauma were dying every
other day before obtaining justice.
Secondly, these trials clearly demonstrated that the genocide committed
in Rwanda had been of an “internecine” nature as mentioned above. The
genocide severed links between family members that are usually sacred. How
can we therefore manage the future relationship between a father guilty of the
murdering his wife and whose own children were the main witnesses against
him? In this context, the need for justice must go hand in hand with the need
to restore bonds within families and between families that had been destroyed
by the genocide.
Thirdly, there was at least one crime committed in almost every village either
in form of genocide inciting speeches, informing on the hiding places of
victims, looting, killing, rape, etc. Given the scale of the genocide, the number
of participants in this unspeakable crime and the numerous locations of the
crimes, no conventional method of investigation could conduct an adequate
investigation within a reasonable period of time. The investigation and trial
of cases to ensure that justice is rendered for all the victims and suspects
during their lifetime was not possible. Ultimately, no alternative other than the
Gacaca courts could provide justice in a reasonable period of time for both the
victims and suspects and also be able to establish the individual roles of each
of the thousands of suspects. There was a risk of not being able to prosecute
some of the key figures so as to give a lesson to future generations like it was
done in Nuremberg after the fall of Nazi Germany. The next point examines
the attitudes expressed by the various relevant parties in the initiation of this
atypical process and their changes over time.
165
6.3. Evolution of the attitudes of survivors, suspects and members of the
international community regarding the Gacaca process
As might be expected, such an initiative almost similar to a leap in the dark,
since there were uncertainties to overcome, was not received unanimously
by the parties involved in this post-genocide justice. First of all there were
many influential members of the International Community who simply could
not understand how litigations that had overwhelmed ordinary courts could
be entrusted to “Inyangamugayo” judges who did not even know the basics
of conventional law. Such an attitude was understandable given the fact that
their standard of reference was based on the western model of justice which
had just been unable to compile the large number of case files or to try the
thousands of suspects within a reasonable period of time. But at the same
time, these strategic partners of the Rwandan government had difficulty
providing any alternatives because the existing legal systems and experiences
from other countries were not adapted to the Rwandan context.
In addition, the genocide survivors who demanded justice questioned the
relevance and effectiveness of such a legal system that is based primarily
on input from members of the local community. They assumed that many
of these members of the local community would seek to exonerate their
relatives instead of providing justice to the few survivors who escaped the
killings. Similarly, at the beginning of the Gacaca process, those suspected of
involvement in the genocide could not believe that their voluntary confessions
would ensure the reduction of their sentences. They interpreted this process
more as a ploy invented by the government to make them tell the truth and
expose themselves to acts of revenge.
This attitude of distrust was reinforced by the campaigns against Gacaca.
These campaigns were orchestrated from the West through networks that had
been created by members of the former regime who are themselves known
to have been responsible for planning the genocide. In addition, the Great
Lakes region was full of political-military groups that discouraged any efforts
towards national reconciliation.
166
According to the answers provided by respondents during the interviews,
these campaigns generally fell under three different strategy categories. The
first strategy involved solidarity among the detainees to remain silent, in order
to hide the truth mostly about crimes which they believed were witnessed by
living survivors.
The second tactic involved putting the blame for most of the crimes on
renowned criminals who are unable to conceal what they did. The third
strategy involved raising money from abroad and using it to try and corrupt
the chairpersons of some of the courts. They offered them substantial sums of
money through their family members to persuade them to exonerate former
opinion leaders and smuggle them abroad where they were used to discredit
the Gacaca process.
Faced with these various pressures, the National Service of Gacaca courts began
with a pilot phase of information gathering. This was a test on the probability
of success of the Gacaca process, or rather a practical evaluation session
aimed at verifying whether the obstacles encountered could be overcome.
This exercise begun in the prisons. Detainees suspected of involvement in the
genocide were invited to voluntarily transcribe their guilty pleas.
Subsequently, the detainees handed over lists of locations where they
committed crimes and were ready to testify before the population. This in
turn raised the need to prove or disprove the information provided by the
detainees. At the initial stages of this new and unique experience, social unrest
had created an atmosphere of anxiety, because the detainees spoke honestly
about the dehumanizing acts of torture and rape that they had inflicted on
women and even under-age girls before killing them among other crimes;
This attitude was interpreted by many survivors as a thinly veiled desire
to rub salt into their fresh genocide wounds, had been diminished through
preparation sessions for detainees on how to conduct themselves in front of
the survivors.
There were positive results from the questionnaire survey, supplemented
by results from the interviews on the issue of how the attitudes of all the
stakeholders evolved over the course of the Gacaca process. They indicate how
167
the reluctance initially displayed by members of the international community
as well as the survivors and those suspected of involvement in the genocide
has decreased over time.
After the stakeholders realized that this process allowed for the separation
of the truth from lies, they recognized that the Gacaca courts were the best
solution for managing genocide cases. But as explained in the following
paragraph, the stakeholders were not convinced by the same facts.
Indeed, except for a few exceptions, most of the reluctance displayed by
members of the international community were easily alleviated by easy
access to the plenary sessions of the trials and by the possibility offered by
the National Service of Gacaca courts to discuss their observations which
was followed by prompt recognition and correction of any procedural errors
reported by these organizations.
As already mentioned above, the survivors were in most cases convinced
that the Gacaca process was a credible alternative when they were given
information (whether incomplete) that helped them locate the remains of their
loved ones.
Also over time, they realized that the incomplete pieces of information from
detained suspects could be manipulated and used to open new investigations.
In fact, by comparing several testimonies of this kind from people who had
not had the time to connive, we were able to reconstruct the events and get to
the truth during the trials.
As for the suspects, most were convinced that the Gacaca process was credible
at a particular time. This was when they observed that for the same crimes,
those who confessed and apologized to the victims, were released from prison
to complete their sentences through community service while those who lied
had their sentences increased and returned to prison. Therefore, the truth
gradually gained ground over the lies.
168
Consequently, with evidence that many prisoners had been freed from the
influence of the cliques intending to conceal the truth, the issue of forgiving
detainees suspected of participation in the Genocide became acceptable to the
survivors. It is within this context that a group of widows, who survived the
genocide at Rilima (Bugesera), took the initiative to advocate for a prisoner
who they believed had revealed the whole truth about what he had done during
the genocide. It should be noted that such occurrences were observed at other
courts where truth was considered to have been complete.
6.4. Gacaca courts in Rwanda as a solution for the management of
genocide cases
In this section, we shall return to the originality of the Gacaca process and
to the factors that led to the accomplishment of its original objectives. We
illustrate that the Gacaca process resulted from a pioneering political decision
and was adequate to conduct the trial of genocide cases.
We shall then highlight the originality of the system that guided the gathering
of information and the conducting of trials. Furthermore, we shall indicate
how this system is based on coordination and operational mechanisms. Next,
we shall highlight the role played by the Inyangamugayo judges and various
institutions in the success of the Gacaca process
6.4.1. The Gacaca process as an adequate political decision for the trial
of genocide cases
As mentioned in the introduction, Rwanda faced many challenges in the
aftermath of the genocide, the main ones being the conduction of genocide
trials and the need to restore the damaged social relations.
In 1996, a special prosecution system was established to prosecute people
suspected of perpetrating genocide crimes and crimes against humanity. It
was not only intended for the prosecution and punishment of those involved,
but also had the objective of speeding up their trials while also restoring the
Rwandan society.
169
Despite the courts’ best efforts in capacity building, the total number of cases
tried during the four years that followed amounted to only about 1/50th
of all suspects awaiting trial. The situation brought the Government to the
conclusion that there was need to find an alternative system. After proposals
were made to this effect from open consultation of the public the Gacaca
courts were recommended as a solution to the Rwandan context.
In political terms, the choice of this participatory justice system known as
Gacaca was already under consideration in ongoing discussions since 1998,
as part of the meetings held at “Village Urugwiro”. Given the inherent
difficulties presented by the conventional judicial system, it was agreed that
an alternative participatory justice system be established
The majority opted for the traditional system of dispute resolution. An ad hoc
committee was then established in October 1998 with a mandate to determine
its capacity to absorb the burden of genocide trials. Its report published in 1999
was the basis to conduct a wider survey including the entire population128.
After these various surveys, the Government of National Unity issued a
Project on Gacaca courts, which was the subject of series of discussions
with representatives of various groups of the population and of international
stakeholders. Based on these dialogues the original project was modified,
adopted and established as a law, under Law No. 40/2000 of 26 January 2001
governing the creation of Gacaca courts and organizing the prosecution of
genocide crimes and other crimes against humanity committed between 1st
October 1990 and 31 December 1994. Considering the results achieved by
the Gacaca process as regards access to the truth, the fight against impunity
and the acceleration of trials as well as in terms of its contribution to national
reconciliation, it is evident that it was the most adequate political choice
given the complexity of the genocide. No other system would have compiled
this much detail relating to the planning, organization and carrying out of the
genocide all over the country.
Bizimana Jean Damascène, « L’Etat de droit au Rwanda après le génocide contre les
Tutsi » in Dialogue, n°191, 2010, pp. 62-82.
128
170
In addition, the political decision to entrust the genocide trials to the people
was a great way to fight against impunity. The Rwandan people were
involved in finding solutions, while taking into account the fact that genocide
is an immutable crime. One of the most significant contributions of Gacaca
process was that it demonstrated that this most serious of crimes is now
fully punishable, regardless of the number of people who participated in its
perpetration or the scope of the killings and destruction that occurred.
In this same regard, the Gacaca process demonstrated the possibility to
provide justice for thousands of suspects within a reasonable period of time
and in accordance with the law in place. Finally, the Gacaca courts allowed
for a face to face exchange between the survivors and their torturers on the
subject of the genocide crimes. This process made ​it ​possible to determine
individual responsibility through the confessions of guilt and repentance.
The calm atmosphere and the beginning of constructive dialogue based on
forgiveness contributed significantly to national reconciliation.
It is safe to say that considering analyzes developed above the political decision
to entrust to the trial of genocide cases to Gacaca courts was adequate given
the context of Rwanda after the genocide.
6.4.2. The Gacaca process as Rwandan cultural value
The other symbol of the originality of the Gacaca process is that its authenticity is
not derived from an external model of justice proven in another country but rather
embodies a local reality based on traditional values ​​of justice of the Rwandans.
Its approach is based on reprimanding that seeks secular harmony through
condemnation of the crime as well as procedures to reintegrate the offender.
Although the Gacaca process has been formalized through laws and guidelines
to harmonize the functioning of the courts which were spread out in different
cells and sectors throughout the country, the debates during the plenary
sessions of the trials were underpinned by the Rwandan traditional culture.
This is a fundamental element to take into account since the search for truth
was essentially based on facts reported by eyewitnesses.
171
Note that this cultural nature of the Gacaca process was quantitatively
approved by 83.7% of the respondents who believed that the originality of the
process tapped into the Rwandan tradition to provide appropriate solutions to
the turmoil caused by a tragedy as horrible as genocide.
Following the same logic, 85.9% of the respondents suggested that the benefits
of the Gacaca process should be maintained and applied to solve other complex
problems facing Rwandan society. They felt that the institutionalization of
Gacaca as a permanent mechanism for conflict resolution is a recommendation
worth supporting.
6.4.3. Originality of the mechanism put in place to guide the investigation
of cases and conducting of trials
As demonstrated by analysis of the manual guiding procedures of gathering
information on the planning and implementation of genocide, one of the original
characteristics of Gacaca courts was the gradual structuring very complex
process. This led to the gathering of substantial amounts of information well
before the actual trials such that suspects were not even tempted to hide facts
they deem to be self incriminating.
Regarding the planning of the genocide, the information gathering process
comprised three stages. The first step involved the systematic identification of
all people who were living in the cell by September 1990, this means one month
before the start of the liberation war launched by the Rwandan Patriotic Front.
This was followed by the drafting of a list of all the people who lived in the
cell by March 1994, this means one month before the genocide began. Then
a third list was made of individuals who were arrested for being accomplices
of the RPF (spies) just as the hostilities began.
In order to ensure that this information is accurate and complete, the lists were
drawn up to the scale of ten “houses”’ (Nyumbakumi, the smallest administrative
unit at the time). Members of each household were asked to recount all those
who lived with them and their neighbours during these key periods.
172
The second step of information gathering focused on making a list of the
genocide instigators at the cell level. The inventory of genocide planning
meetings as well as the participants in these meetings and the list of people
targeted for killing.
The third step of information gathering focused on people involved in the
distribution of weapons used in the killings, a list of members of the militia
groups that were formed an account of the roadblocks that were mounted in the
cell.
When gathering information about what had happened in each cell regarding
the implementation of the genocide, the Gacaca courts relied on the confessions
of guilt and repentance made those accused of involvement in genocide.
These confessions were transcribed on designated forms and submitted to the
secretariat of the relevant court which examined the content of the confession
and identified any inconsistencies that were then submitted to the General
Assembly for clarification.
Gathering information on the implementation of the genocide was done in
four phases; the first step involved making a list of the inhabitants of each cell
who were killed during the genocide, that of individuals from outside cells
who were killed in each cell and that of inhabitants of each cell who were
killed outside their cells of residence.
There was also a list made of the inhabitants killed in each cell because of
their refusal to participate in the genocide, that of people from outside the cell
who were killed because of their refusal to participate in genocide and that of
the inhabitants of the cell who were killed outside their own cell because of
their refusal to participate in genocide. Then another list was made indicating
the location where human remains were disposed of and the destruction or
looting of property in each cell.
The second step of the information gathering at each cell focused on identifying
households that had been attacked, places of refuge, genocide survivors and
people who had come to the aid of persecuted people.
173
The third step of information gathering focused on attacks carried out in the
cell, those carried out outside the cell by inhabitants of the cell in question, as
well as identification of the renowned killers in the cell. Finally, the gathering
of information on the implementation of the genocide was directed towards
obtaining descriptions of the circumstances of death of every inhabitant of the
cell who was killed during the genocide.
The third special feature of the Gacaca courts is the decentralized nature of the
information gathering starting at a Nyumbakumi (ten houses) scale, followed
by the validation of the information by the general assembly comprising
of all the inhabitants of the cell. In fact all the inhabitants at the level of
administrative unit mentioned above knew each other individually. This
reduced the risk of mistaking identities or concealing facts. The information
collected after all the steps described above was then used to compile the case
files of the accused. These were listed with the charges against each of them.
The decentralized nature of Gacaca courts also prolonged the duration
of the trials. In fact, the population did not simply play a passive role as
in the ordinary courts where cases are only discussed between the public
prosecutors, judges and lawyers. Under the Gacaca system, members of the
local community were involved in the process. They had the autonomy to
choose to be prosecution or defence witnesses. They also had the right to ask
questions thereby enriching the debate even opening new investigations or
supplement the information gathered during the previous session.
Regarding the phase of conducting trials, another special feature of the
Gacaca process relates to the scheduling of case files submitted to the plenary
sessions. The order of hearings began with the defendants who had confessed
their crimes. This practical modality was important because it was also a
strategy to accumulate information against those who had opted for silence.
In reality, this was advantageous to all relevant parties: the judges had easier
access to the truth, the survivors found information about the fate of their
loved ones and about the circumstances of their death. They were also able
to locate the remains of the victims. As for the repentant detainees, they were
able to get reduction of their sentences because of this judicial strategy.
174
According to the report of the Executive Secretariat of the National Service of
Gacaca Courts, it was only when people who committed the same crimes were
sentenced to different punishments that the trend begun to shift. Many detainees
realized the benefit of disclosing the truth basing on the results of those who
confess their crimes. In the meantime, the groups dedicated to concealment of
the truth gradually lost their influence in the local communities.
In our view, the other advantage of the Gacaca process was the option of
trying the accused at the location where the crimes were committed. In this
context, the involvement of all the inhabitants of the area in the information
gathering and in the trials had a very significant cathartic effect because these
sessions exposed the unspeakable before everyone. Every member of the
community faced his or her own history during this critical period of the
nation’s history.
By the end of the Gacaca process, no Rwandan could remain ignorant by
limiting themselves to generalizing opinions such as: “all Hutus are guilty
since they have supported or at least sympathized with the perpetrators of
the genocide.” Another argument of this kind is expressed in generalizing
statements such as: “they are all innocent since no one could escape the
genocide machine.” With the participatory Gacaca process, people knew how
to distinguish between the camp executioners (“Perpetrators’’), this includes
those who displayed zeal in the committing of atrocities, people who put their
lives at risk to save others (‘’ rescuers’’) and those who were indifferent (‘’
bystanders’’).
Ultimately, the process of Gacaca courts laid the foundation that can serve
as a basis for future generations to construct a collective memory which is a
choice to share a sense of national history.
175
6.4.4. Coordination mechanisms that facilitated the success of the Gacaca
process
As might be expected, the launching of this unique system required efficient
coordination. To this end the Executive Secretariat in charge of this function
was strengthened through the recruitment of legal experts who were
responsible for ensuring compliance with the law. They had to find solutions
to legal problems that arose at each stage and to disseminate the measures
taken nationwide as quickly as possible. Each administrative sector was
overseen by a coordinator who closely followed the progress of its activities
and provided technical advice to the Inyangamugayo judges.
Given the fact that this was a pioneering solution that could not refer to any existing
case law, the NSGC staff was constantly seeking new solutions to contingencies
that might arise during the process. For example, faced with prison overcrowding
that resulted from the discovery of new facts, especially during the crucial period
of 2007-2008, the NSGC initiated a measure to decongest the prisons. This was
the sentence of community service reserved for all those who pleaded guilty. We
must not lose sight of the fact that at the beginning of the process the minimum
sentence passed by Gacaca courts involved imprisonment.
It should be noted that these measures presented through circulars that were
sent to the Inyangamugayo judges, which were then formalized into systematic
instructions specifying the course of action applicable to each challenge. For
matters that required amendment of the law, the legal experts of the NSGC
compiled the necessary proposals for submission to the authorized institutions.
It is within this setting that the law governing Gacaca courts was amended in
2006, 2007 and 2008 to accommodate the requirements in the field.
Given the complexity of the task, the coordination of Gacaca courts
went beyond the application of predetermined rules. It involved ongoing
development of new measures, harmonization of the act of Inyangamugayo
judges and regular monitoring of the evolution of the process.
176
On the managerial level, the coordination of the Gacaca process was highly
participatory. This activity was facilitated by the fact that any new problems
encountered in the field were immediately reported to the NSGC via charge
free telephone lines. The NSGC would in turn summon its legal experts to find
quick and adapted solutions while continuing to monitor the situation. This
original mechanism that combined consultation, conception of new ideas and
the direct supervision of their implementation has been largely instrumental
in the success of the Gacaca process.
6.4.5. Role of « Inyangamugayo » Judges
As we have shown in the previous chapters, most of the work of Gacaca
courts was done by Inyangamugayo judges. They were in charge of gathering
information on crimes committed, compiling the information into case files
and conducting the trials.
This research demonstrated that not only did they close more than a million trials
in record time, but they also adequately adhered to the procedural laws governing
Gacaca courts at the same time. In a word, the “Inyangamugayo” judges fulfilled
two requirements - namely, rendering justice to the parties concerned and fighting
against impunity by revealing the truth about crimes committed in each village
and punishing these crimes in accordance with the law.
The “Inyangamugayo” judges were trained to master the law and comply
with its provisions. These judges who were new to the law were always eager
to consult the NSGC legal experts whenever they encountered with cases
that were difficult to interpret. Moreover, when they found that the number
of remaining trials could not be closed by the scheduled date, these special
judges increased their number of working days to correspond with number
of trials remaining, which is an indication that they had acquired a sense of
professionalism and dedication.
What is striking is that most judges who were interviewed viewed the Gacaca
process as a matter of the utmost importance. They considered interventions
from the NSGC and other institutions as support to their own task. Such an
177
awareness of the value of the Gacaca process at the grass root level was a
key factor to its success. As we may recall this process is rooted in Rwandan
culture, where local conflicts were considered to be more of an affair between
inhabitants than a matter to be resolved by governing institutions.
Moreover, this attitude strengthened the autonomy of the judges since they
did not want the history of the genocide to be manipulated within their
constituencies. It is in this spirit that the attempts of interference that were
made by some influential people were denounced; an example of such attempts
at corruption is the case of Mugiraneza J. Vianney at the Nyarugunga Gacaca
court of Appeal.
This honourable behaviour is even more admirable when one considers
the fact that these “Inyangamugayo” were working in difficult conditions,
without pay and were often threatened or marginalized by the families of
those convicted.
6.4.6. Collaboration of various institutions
Public administration research has often criticized the lack of collaboration
between public institutions due to bureaucracy. The management of the Gacaca
process was an exception to this observation. During this research, we found
out that any requests addressed to the Ministry of Local Government, the
National Prison Service (NPS) and the National Police by the NSGC received
the necessary attention and appropriate responses in time. The reason for
this was certainly because these institutions viewed the Gacaca process as a
national priority.
For example, the Ministry of Local Government actively contributed in the
provision of supplies for working spaces, provision of storage facilities for
case files and especially in sensitization of the public to actively participate in
information gathering and in the hearings of Gacaca courts.
The support of the National Police was also instrumental to the success of
the Gacaca process. They provided security for the hearings, the case files,
178
the judges and the witnesses. The police was also in charge of searching for
suspects who refused to voluntarily appear before court and those who tried
to escape justice or destroy evidence. They were also in charge of arresting
those who were convicted by the courts.
We also noted that the National prison Service worked closely with the NSGC
to facilitate the transfer and transportation of detainees to the various courts
that summoned them. The two institutions collaborated in the construction and
management of transit sites for detainees near the locations where Gacaca court
hearings were held. The NPS also provided their meals and security. They did not
put any pressure on the Inyangamugayo judges to conclude the trials in haste.
As can be corroborated by previous analyzes, without the logistical support of
various institutions, the Gacaca courts would not have adequately accomplished
their mission on time. It is also interesting to note that these institutions were
limited to providing technical support avoiding any infringement to the
autonomy of the Inyangamugayo judges.
6.4.7. Involvement of the local population in the Gacaca process
Although at the beginning most people were reluctant to comment on their
opinion of the Inyangamugayo judges, the participatory nature of the Gacaca
process gradually became a reality. Gradually the truth was revealed on facts
that had been concealed by some suspects. In fact, these suspects found
themselves in a dilemma between the benefits of reduced sentences and their
solidarity with the manipulators of the truth whom they initially supported.
Finally, the results of our study show the predominant role played by the
community. In fact 82.1% of the respondents stated that without the help of
the local population, the identification of thousands of victims and thousands
of suspects who did not always have fixed addresses or known professional
positions would never have been possible. Moreover, professional investigators
who did not know the specifics of how the genocide was committed in each
cell would not have been able to collect sufficient information to identify the
locations of the crimes.
179
Note however that the contribution of the population in the providing
information against the guilty or in defence of the innocent was not the same
everywhere. It was more pronounced at sites where detained suspects gave
honest confessions about what they had done. The contribution from the
population was also more extensive in areas where there was a possibility of
contradiction. To clarify the facts, it was necessary to have survivors who can
confirm or deny the versions given by the detainees.
Unfortunately, at sites where there were no survivors to testify and the detainees
decided to remain silent about certain crimes, the local people preferred to
remain in complicit silence most of the time. In fact, they would only confirm
the facts that were obvious.
6.4.8. Ability of Rwandans to overcome the consequences of the
genocide
As a reminder, it should be noted that after the genocide many observers
believed that restoration of social relations in Rwanda was almost impossible.
Some even proposed territorial separation of the social groups namely the
Tutsi and the Hutu.
However, the Gacaca process was a vivid illustration of the ability of the
Rwandan people to overcome their pain and participate in seeking solutions
to the critical problems facing their society. In addition to resolution of justice
related problems, the Gacaca process also gave the families of victims and
those of convicted prisoners the opportunity to have face to face exchange
in which discussed the evil that was poisoning the post-genocide Rwandan
society through an open and direct dialogue. They together undertook the
task to mend positive social relations by starting with the fundamental act of
requesting and granting of forgiveness. On a psychological level, the Gacaca
process proved to be a method of national resilience. Indeed, the pain of the
victims was shared by the whole community through demonstration of all the
betrayals and atrocities committed against them.
On a general level, the Gacaca process demonstrated the ability of Rwandans
to face the consequences of the worst tragedy while balancing two crucial
180
aspects, namely; rendering justice and reconciling the Rwandan people. In
this regard, 95% of respondents felt that the Gacaca process was the only
adequate mechanism to manage the genocide trials, which allowed access to
the truth and justice within a reasonable period of time.
It also gave a historical lesson to the Rwandan nation and to the world. It
gave inspiration to the current generation of Rwandan people by restoring
the ancestral values ​​of fighting against impunity while promoting the social
reintegration of the condemned who repent. It therefore created favourable
conditions for a national reconciliation that had been lacking for decades.
To others, it was a demonstration of the true meaning of sovereignty through
the application of an effective practice that was exclusively Rwandan. It
should be remembered that the genocide took place in the full view of the
international community through the international media worldwide yet the
latter had all the means to stop the unprecedented carnage but did nothing.
6.5. Partial conclusion
As we have shown throughout the previous chapter, the choice of the Gacaca
process was a pioneering political solution as we had mentioned at the
beginning. It allowed all levels of the Rwandan population to provide building
blocks for their nation.
The search for remedies to the consequences of the genocide was the work of
every member of the Rwandan community. Its originality which mirrors the
exceptional courage involved in the choice made by the Rwandan Government
was based on several aspects, the main one being the application of cultural
values. We must also recognize the important role of rationality associated
with the system that guided the gathering of information. In addition to the
fact that it was decentralized and participatory, the conducting of trials was a
determining factor in achieving the initial objectives.
181
GENERAL CONCLUSION
As a general conclusion to this study whose main objectives were: to assess
the degree to which the process of Gacaca courts was able to provide access
to truth, speed up the trials, fight against impunity, contribute to the national
reconciliation process and demonstrate the ability of the Rwandan people to
solve their own problems, we would like to address two fundamental issues to
which we attached great importance throughout this research. First of all we
shall try to answer the question that arises de facto at the end of all scientific
work: did the Gacaca process, which was the subject of this evaluation report
commissioned by the NSGC, achieve its initial objectives?
Next, we shall discuss the lessons learned from Gacaca courts by both the
Rwandan society and the International Community.
Finally, we shall propose some recommendations that map out the prospects
for the future of Gacaca.
As we have shown in this report, the Gacaca courts initially raised a lot of
scepticism from many observers inside and outside Rwanda, at the time of
its launch. Also, if it were not for the political dedication of the Rwandan
Government, the Gacaca process would not have emerged.
In the aftermath of the genocide, the magnitude of challenges involved in
managing the case load that resulted from this unprecedented tragedy required
equivocal commitment to find an adequate form of justice suited to the special
circumstances. In fact, these cases rendered the conventional justice system
completely unsuitable. Political pragmatism was therefore required to try and
provide fair trial to the thousands of incarcerated suspects while establishing
their individual responsibilities in the genocide. The same realism would also
be required to provide justice to the victims. At the same time, reveal the truth
about where the human remains were disposed of so as to give closure to the
victims.
Faced by a legal impasse at two levels created by the massive participation
of the population in the execution of the genocide and the destruction of
182
the judicial system, the Government of National Unity had to conceive an
original system. The latter was designed to maximize the possibility to access
information on crimes committed in every village, to bring thousands of
suspects to justice in a reasonable period of time but also ensure compliance
with the law. The Gacaca process was adopted as an original mechanism
to resolve cases of genocide and was institutionalized by Organic Law No.
40/2000 of 26/01/2001.
An immense quantity of work was done by Gacaca courts spread across all
administrative sectors of the country. A total of 1,222,093 trials, including
383,118 in the second category and 838,975 in the third category had already
been closed at the time this research was conducted. Among the defendants
in the second category, 28% pleaded guilty, 41% were convicted even though
they refused to go through the process of voluntary confessions, while 30%
were acquitted.
Regarding defendants placed in the third category, only 4% of the defendants
were acquitted, while 96% were convicted of looting or destruction of
property during the genocide. We noted however, that for the trials of offences
relating to looting or destruction of property, there were virtually no voluntary
confessions.
If we consider the contributions of the Gacaca process one objective at a
time, access to the truth occupied the priority position. The results obtained
and presented in Chapter 2 of this evaluation report show that the Gacaca
courts significantly contributed to the revelation of the truth. Consequently,
the Gacaca process also contributed to the enumeration of the victims and
description of the atrocities they endured as well as identification of the
innocent and the places of refuge of the survivors.
Moreover, the majority of respondents stated that the Gacaca process helped
identify the genocide masterminds to a satisfactory degree. Also, we found
that the decentralized and participatory nature of the Gacaca process was
crucial in identifying field organizers and executioners as stated by 83.5% of
the respondents.
183
Regarding the speeding up of trials, counting of the cases that were archived
at the National Commission for the Fight against Genocide demonstrated that
the first trial sessions were accelerated at a very encouraging pace. 82% of
the all the trials were closed after only one session, 16% were closed after
two sessions, 1% after three sessions and finally 0.5% after four or more
sessions.
Regarding the appeal hearings, 77% were closed after one session, 18%
after two sessions, 4% after three sessions and 0.4% after four or more
sessions. Analysis of data from the questionnaires also shows that 87% of the
respondents believe that the Gacaca courts held speedier hearing while at the
same time observing the principle of fair trial.
Regarding the fight against impunity, 86.4% of the respondents stated that the
Gacaca process allowed for the trial of thousands of people while observing
the principles of a fair trial. Achievement of this goal was facilitated by the
fact that the hearings were held at the locations where the crimes took place.
Therefore, the testimonies from local people who had been eyewitness to
the genocide in every cell was instrumental in establishing the individual
responsibility of each defendant.
Regarding the contribution of Gacaca courts to the national reconciliation
process, the results obtained during this research show a significant figure.
87.3% of the respondents stated that Gacaca courts have contributed to the
reconciliation process. It was noted that this statistic is very close to 85.4%
which was the target statistic of national reconciliation guidelines.
One of the points raised at most of the sites that were included in the research
sample is that the Gacaca process helped separate the truth from lies and
clarified the circumstances of death of each victim and determined the locations
where their remains were disposed of so that they may be buried with dignity.
In this regard the Gacaca process considerably relieved the frustration of the
survivors.
184
Access to the truth has generally had the effect of lifting suspicion and
consequently restoring good social relations between families of the survivors
and their innocent neighbours. Similarly, the Gacaca process also prevented
generalization of guilt since it allowed for the distinction between the guilty
and the innocent.
Regarding the last objective, namely the demonstration of the ability of the
Rwandan people to solve their own problems, the choice to adopt the Gacaca
process appeared to be courageous political solution. It was an opportunity
for all levels of the Rwandan population to participate in finding solutions to
the problems that resulted from the genocide.
Various aspects point to the originality of the process including the room for
application of cultural values ​​in the Gacaca courts and the rationality of the
system that guided the gathering of information and the conducting of trials.
Its decentralized and participatory nature was a key instrumental factor in
achieving the initial objectives of the process. One of the indicators of this
success was the positive reactions expressed by the target population of this
study.
95% of the respondents believed that the Gacaca process was the only adequate
way to manage the genocide trials. According to them, it simultaneously
provided access the truth, rendered justice within a reasonable period of time,
gave a historical lesson in the fight against impunity while promoting social
reintegration of repentant convicts and national reconciliation.
An assessment of the degree of achievement of its objectives would not be
complete without taking into account the lessons from the Gacaca process
to the Rwandan community as well as the international community. As can
be seen throughout this report, the judgment of over one million trial was
a monumental task in itself. However, considering the fact that they were
cases relating to genocide crimes, it can be agreed that this was an exception
unprecedented in the history of mankind.
185
Therefore, the Gacaca process was indeed a textbook case whose first lesson
is about the participation of the local population whose main contribution
was to reveal the truth about the crimes committed in their own villages.
This facilitated identification of the masterminds and the locations where the
remains of the victims had been disposed of. This local ownership of the facts
fostered awareness that genocide is a horrible crime whose consequences are
incalculable and boundless to the survivors and to the guilty as well as to their
families.
The second lesson is about the methodology that involved public revelation
of the truth. This had a profound educational effect because the Rwandan
society realized that henceforth genocide is fully punishable, regardless of the
number of people involved in the atrocities or their social standing.
The Gacaca process confirmed the legal principle of equality of all before the
law, thus, emphasising the idea of sacred inviolability of the human being.
This is an undeniable lesson about the importance of respecting fundamental
human rights by all members of society.
Moreover, the Gacaca process offered a historical lesson against blindfollowing since these courts have focused on individual responsibility,
recognition of one’s own crimes and requesting for forgiveness from the
victims.
Finally, whatever the complexity of the genocide trials, the Gacaca process
is a compelling illustration of the ability of Rwandans to take charge of their
own problems and their seek for adequate solutions. They proved they could
find adequate solutions to the challenges facing their communities.
186
RECOMMENDATIONS
Given the undeniable achievements accomplished by the Gacaca process, it
is necessary to establish mechanisms that ensure the sustainability of this
process. Thus;
- The preservation of records initiated by the NSGC should be supported
by long-term programs. This would allow future generations to easily
find the information from each court and even the information on each
case that was tried in the Gacaca courts.
- The closing of Gacaca courts should be accompanied by a legal system
to oversee the prosecution of genocide crimes. This would avoid the
legal gap that is inherent of the practical modalities of the Gacaca
process in the field.
- Whatever the successes, we cannot claim that all genocide-related
crimes were identified and punished. Therefore, sensitization regarding
the disclosure of information on genocide crimes should continue, so
that they are followed up by relevant authorities.
- Finally, the individuals who were involved in the Gacaca process at
various levels acquired indispensable expertise and they should be
taken into consideration, for example the expertise of Inyangamugayo
judges. Their skills could contribute in the management and resolution
of social conflicts for the benefit of Rwanda and even the international
community.
187
BIBLIOGRAPHY
1. African Rights, Confessing to Genocide. Responses to Rwanda’s Genocide Law,
June 2000.
2. African Rights, Gacaca Justice. A shared Responsibility, January 2003.
3. African Rights, Resisting genocide. Bisesero April-June 1994, Kigali, 1994.
4. Amnesty International, Rwanda, the aftermath of genocide and war, London,
avril 2004.
5. Amnesty International, Rwanda, a question of justice, London, novembre 2002.
6. Avocats Sans Frontières, Monitoring Gacaca courts at the trial phase, Analytical
Report, March-September 2005.
7. Avocats Sans Frontières, Monitoring Gacaca courts at the trial phase, Analytical
Report n° 2, October 2005-September 2006.
8. Avocats sans Frontières, Vade Mecum, The crime of genocide and crimes against
humanity before ordinary courts in Rwanda, Kigali-Brussels, 2004.
9. Conflict Management Centre, Gacaca Courts and the Process of National Reconciliation, Notes of the Conflict Management Centre, n˚ 3, 2001.
10. Chretien Jean Pierre, L’Afrique des Grands Lacs : deux mille ans d’histoire,
Paris, Aubier, 2000.
11. Chretien Jean Pierre, The challenge of ethnism. Rwanda and Burundi 19901996, Paris, Karthala, 997.
12. Clark Phil, The Gacaca Courts, Post-Genocide Justice and Reconciliation in
Rwanda: Justice without Lawyers, Cambridge: Cambridge University press,
2010.
13. Conference on Gacaca Courts organised jointly by the Ministry for Justice,
National on the Unity and Reconciliation Commission and the National
University of Rwanda, Kigali, 6-7 March 2000.
14. National Human Rights Commission, Report of observation of Gacaca Courts,
January-March 2005, Kigali, September 2005.
15. National Human Rights Commission, Summary Report of the reports of the
CNDP and its partners on monitoring of Gacaca Courts, January December
2005, Kigali, July, 2006.
16. National Human Rights Commission, Opinion poll on the participation in
Gacaca courts and national reconciliation, Kigali, January 2003.
188
17. Supreme Court, Department of Gacaca Courts & ASF, Explanatory handbook
on the Organic Law creating Gacaca Courts, Kigali, October 2001.
18. Supreme Court/Department of Gacaca Courts, Explanatory handbook on the
Organic Law creating Gacaca Courts, CS/DPG, Kigali, October 2001.
19. Supreme Court/Department of Gacaca Courts, Strategic plan of the Gacaca
process 2003-2005, Kigali, March 2003.
20. Supreme Court/Department of Gacaca Courts, Report of activities of Gacaca
Courts, Kigali, October-November December 2002, February 2003.
21. Supreme Court/Department of Gacaca Courts, Quarterly report, July-AugustSeptember 2003, Kigali, 2003.
22. De Lame Danielle, « Deuil, commémoration, justice dans les contextes rwandais
and belge », in Politique Africaine, 92, 2003, pp.39-55.
23. Derrida Jacques, « Le siècle et le pardon », Le Monde des débats, N°9, décembre
1999, p.16.
24. DFID, Security and Justice Routes to Reconciliation. Rwanda case Study, Kigali,
March, 2004.
25. Du Toit André, « La Commission Vérité and Réconciliation Sud-Africaine », in
Politique Africaine, nº 92, 2003, pp.97-116.
26. Dupaquier François (éd.), La justice internationale face au drame rwandais,
Paris, Karthala, 1996.
27. Evaldsson Anna-Karin, Grass-roots reconciliation in South Africa. Ph.D.
Dissertation, School of Global Studies, Department of Peace and Development
Research, Göteborg University, 2007.
28. Freeman Marc and Marotine Dorothée: http:/www.ictj.org/images/
contents/7/5/752pdf “What transitional justice? “ International Center for
Transitional Justice, 19 novembre 2007.
29. Garapon Antoine, Crimes that cannot be punished or forgiven, Paris, Odile
Jacob, 2002.
30. Gasibirege Simon, “The election of Inyangamugayo judges: break up or continuity? “,
in Notes of the Conflict Management Centre, nº 6, 2002, pp.93-127.
31. Gasibirege Simon, Qualitative research on the attitudes of Rwandans with
respect to Gacaca Courts, in Notes of the Conflict Management Centre, no 3,
pp.121-164.
32. Goldhagen Daniel, Hitler’s Voluntary Executioners. Ordinary Germans and the
Holocaust, London, Abacus, 2001.
189
33. Grellier Arnaud, The Wounds of Rwanda: “justice on the grass “, Rwanda
Rugali, 2002. Disponible sur : http://rwandarugali.tripod.com/rwanda/index.
htmlouth
34. Hatzfeld Jean, Dans le nu de la vie. Récits des marais rwandais, Paris, Seuil,
2000.
35. Hatzfeld Jean, A season of machetes, Paris, Seuil, 2003.
36. Hayner Priscilla, Fifteen truth commissions 1974 to 1994, a comparative study,
Human Rights Quaterly, 16, 1994.
37. Hazan Pierre, Passing Judgement on War and History: Good Use of Truth
Commissions and international Justice, Paris, PUF, Broché, 2007.
38. IBUKA and Médecins du Monde, Psychological support of of the survivors of
the Genocide against the Tutsi of Rwanda: Action during and after the Gacaca
process, Kigali, 2009.
39. ICG, Five years after the Genocidenocide in Rwanda, Justice challenged, Report
NO 1, April 7, 1999.
40. Institut de Recherche and de Dialogue pour la Paix (IRDP), rebuild lasting peace
in Rwanda: the people’s turn to speak, Draft, 2003.
41. Kimonyo Jean-Paul, The PEOPLE’S participation in the acts of violence in
Rwanda from 1959-to the Genocide in 1994, Speech given in Butare, November
2003.
42. Kimonyo Jean-Paul, Rwanda : un génocide populaire, Paris, Khartala, 2008.
43. National Human Rights Commission, Raporo ku iyubahirizwa ry’uburenganzira
bwa muntu mu nkiko-Gacaca, Mutarama-Kamena 2006, Kigali, Kamena 2006.
44. National Human Rights Commission, Raporo z’indorerezi za National Human
Rights Commission mu manza z’inkiko Gacaca mu mezi ya : ugushyingoukuboza 2003.
45. Hirondelle, L’agence « Les Gacaca Courts devraient démarrer au second
semestre 2001 », Arusha/Kigali, 29 novembre 2000.
46. Lefranc Sandrine, Politiques du pardon, Paris, PUF, 2002.
47. Catholic Bishops of Rwanda. Message of the Catholic Bishops of Rwanda at the
time of the Commemoration of the Tenth Anniversary of the Genocide against
the Tutsi: «Let us remember what happened while reinforcing the truth, justice
and forgiveness “, 2004. http://www.grandslacs.net/doc/3049.pdf).
48. LIPRODHOR, Gacaca Courts. Possibilities and gaps observed from the start,
Kigali, July 2003.
190
49. LIPRODHOR, Four years of genocide trials. What basiss for Gacaca Courts?
July 2001.
50. Loi organique n°08/96 du 30 août 1996 sur l’organisation des poursuites des
infractions constitutives du crime de génocide ou de crimes contre l’humanité
commis à partir du 1er octobre 1990, Journal officiel N° 17 du 01/09/1996.
51. Maclean, I.S., “African Truth and reconciliation Commissions,” Religion &
Theology 6(3), 1999.
52. Mamdani Mahmood, When victims become killers: colonialism, nativism and
the genocide in Rwanda, Princeton, PUF, 2001.
53. Marysse S. and Reyntjens F., L’Afrique des Grands Lacs. Annuaire 1996-1997 ;
1997-1998 ; 2000-2001, Paris, L’Harmattan.
54. Meisenberg Simon, «Equality of amnesty in international humanitarian law,
the decision of the Special Court for Sierra Leone on the Lomé amnesty»,
International Review of the Red Cross, vol. 86, n° 856, December 2004.
55. Ministry of Local government, Community Development and Social Affairs,
Listing the victims of the Genocide. Final report, Kigali, revised version,
November 2002.
56. Ministry of Justice, Gacaca Courts in the trial of genocide crimes which took
place in Rwanda from October1, 1990 to December 31, 1994, Kigali, June
1999.
57. Ministry of Finance and Economic Planning, The Governement of Rwanda
Poverty Reduction Strategy Paper, Kigali, June 2002.
58. Mirembe Sarah, Pardon and Reconciliation, 2006. Available at http://tilz.
tearfund.org/Francais/Pas+%
C3%A0+Pas+6170/Pas+%C3%A0+Pas+68/
Pardon+et+r%C3%A9conciliation.htm.
59. Munyandamutsa Naasson, Question du sens et des repères dans le traumatisme
psychique. Réflexions autour de l’observation clinique d’enfants and
d’adolescents survivants du génocide rwandais de 1994, Genève, Médecine &
Hygiène, 2001.
60. National Unity and Reconciliation Commission (NUR/CNUR), Nation-wide
grassroots consultations report: Unity and Reconciliation initiatives in Rwanda,
Kigali.
61. National Unity and Reconciliation Commission (NUR/CNUR), Report on the
evaluation of national unity and reconciliation, November 23, 2001, Kigali,
June 2002.
191
62. The United Nations, Handbook on « Instruments of the rule of law in countries
emerging from conflict – the truth commissions “, of the United Nations High
commission for Humans Rights, 2006 : http://www.ohchr.org/english/about/
publications/docs/ruleoflaw-TruthCommissions fr.pdf.
63. Ntampaka Charles, “The concept of relationships between the living and the
dead in ancient Rwanda”, in Dialogue, no 225, 2001.
64. Penal Reform International (PRI), Eight years later: an update on the monitoring
of the Gacaca process in Rwanda, Kigali, 2010.
65. Penal Reform International, A camp on the hillside, reintégration of released
prisoners, Report VI, Kigali, May 2004.
66. Penal Reform International, The procedure of confessions, a cornerstone of
Rwandan justice, Report IV, Kigali, January 2003.
67. Penal Reform International, Report on monitoring and research on the Gacaca
Process. Les Justes entre oubli and réconciliation ? L’exemple de province de
Kibuye, Kigali, November 2004.
68. Penal Reform International, Summary report on monitoring and research on the
Gacaca Process. Pilot phase, January 2002-December 2004, December 2005.
69. Penal Reform International, Report I, Kigali, January 2002.
70. Penal Reform International, Research on Gacaca, Report III, April-June 2002,
Kigali, July, 2002.
71. Pottier J., Re-Imagining Rwanda. Confllict, Survival and Desinformation in the
Late Twentieth Century, Cambridge, Cambridge University Press, 2002.
72. PRI, Gacaca Courts and their preparation, Report I, July-December 2001.
73. PRI, Report on research on the Gacacaprocess, Report III, April-June 2002.
PRI, Summary report on monitoring and research on the Gacaca Process. Pilot
phase, January 2002-December 2004, December 2005.
74. Report of the Chilean National Truth and Reconciliation Commission: http://
www.ddhh.gov.cl/historia_programa.html, consulted on 22 December 2010.
75. RCN Justice &Démocracie, General table of confessions 2001-2002, Kigali,
January 2003.
76. Republic of Rwanda, The Supreme Court, Department of Gacaca Courts, « Gacaca Courts as an alternative solution to the settlement of Genocide cases,
Kigali, Octobre 2003.
77. Rutayisire Paul and Jyoni wa Karega Joseph, « Gacaca à la rescousse du système
judiciaire rwandais ? », in Au Cœur de l’Afrique, 2, 1996, pp.297-307.
192
78. Rutayisire Paul, Historique du processus des Gacaca Courts, Tome 1& 2,
2007.
79. Rutembesa Faustin, « A propos des crises rwandaises », in Au Cœur de l’Afrique
N°2-3/1995.
80. Schotsmans Martien, A l’écoute des rescapés. Recherche sur la perception par
les rescapés de leur situation actuelle, GTZ, Kigali, December 2000.
81. Semujanga Josias, Récits fondateurs du génocide rwandais. Discours social,
idéologies and stéréotypes, Paris, L’Harmattan, 1998.
82. Sentama, E., Peacebuilding in Post-Génocide Rwanda: The role of Cooperatives
in the Restoration of International Relationships, Gothenburg, 2009. Available
at http://hdl.handle.net/2077/21377.
83. Seventh report of the United Nations Secretariat General, Mission in Sierra
Leone, UN Doc. S/1999/836, 30 July 1999, para 7.
84. National Service of Gacaca Courts, Inkiko-Gacaca : http://www.inkiko-Gacaca.
gov.rw/Fr/Generalites.htm.
85. National Service of Gacaca Courts, Inkiko-Gacaca : http://www.inkiko-Gacaca.
gov.rw/Fr/Generalités.htm.
86. Staub Ervin, The roots of evil. The origins of genocide and other group violence,
Cambridge, Cambridge University Press, 2002.
87. St-Hilaire Pierre, Critical problems emerging from the Gacaca ‘training of
trainers’ seminar, Kigali, USAID, mars 2002.
88. Tedesco Laura and Barton Jonathan, The State of Democracy in Latin America:
Post-Transitional Conflicts in Argentina and Chile, Routledge, New-York,
2005.
89. Urusaro Alice Karekezi, « Gacaca Courts. The fight against impunity and
promotion of national reconciliation, in Notes of the Conflict Management
Centre, nº3, pp. 9-96.
90. National Service of Gacaca Courts, Raporo y’ibikorwa by’amezi atandatu:
Mutarama-Kamena 2005, Nyakanga 2005.
91. National Service of Gacaca Courts, Raporo y’ibikorwa by’amezi atandatu:
nyakanga-ukuboza 2005, Mutarama 2006.
92. National Service of Gacaca Courts, Raporo y’ibikorwa by’amezi atandatu:
Mutarama-Kamena 2006, Kigali Nyakanga, 2006.
93. National Service of Gacaca Courts, Raporo y’umwaka wa 2004, werurwe 2005.
193
94. Verdeja, E., Unchopping a three. Reconciliation in the aftermath of Political
Violence, Philadelphia, Temple University Press, 2009.
95. Verdier Raymond, Decaux Emmanuel, Chrétien Jean-Pierre (éd.), Rwanda. Un
génocide du XXe siècle, Paris, L’Harmattan, 1995.
96. Vidal Claudine, “Genocide Commemorations in Rwanda”, in Les Temps
Modernes,
no 613, 2001.
97. Vidal Claudine, The Politics of Hate, in Les Temps modernes N°583, July-August
1995 ;
98. Willame Jean Claude, Aux sources de l’hécatombe rwandaise, Paris, L’Harmattan,
1995 ; Prunier Gérard, Rwanda : The History of a genocide, Paris, Dagorno,
1996.
99.Zeisler Nicolas, “The Falklands War in Argentine society since 1983 until
today”, Epicentre – International Studies, consulted on 21 December 2010
http://etudespolitiquesinternationales.blogspot.com/2006/11/la-memoiredes-malouines.html,
194