Gacaca Courts, Justice and Reconciliation

Gerald Caplan

21 April 2011

analysis

Commending a work which sets a ‘universal standard’ on assessing Rwanda’s gacaca courts – ‘the country’s remarkable experiment in transitional justice’ – Gerald Caplan reviews Phil Clark’s ‘The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice Without Lawyers’.

If Phil Clark’s new book can’t be said to be the definitive work on Rwanda’s gacaca, the country’s remarkable experiment in transitional justice, it is only because it is far too soon for such an achievement. It will take years before the impact of the gacaca process can fully be assessed, and we can be confident that even then, consensus – as in all things Rwandan – will be hard to find. Nonetheless, with this new book on gacaca, following his 2008 book of edited essays ‘After Genocide’ (with Zachary Kaufman, reviewed in Pambazuka News issue 443, 23 July 2009), Clark has surely become the universal standard against which all future works must be judged.

Although the gacaca experiment has already attracted a small platoon of academics and other observers fascinated with the vexed issue of transitional justice, I’m aware of no others who have immersed themselves in the subject as thoroughly as Phil Clark. His fieldwork ran from the first trial runs in 2001 to the time gacaca was winding down in 2010, while he interviewed some 450 participants and observed 67 gacaca hearings in 11 communities. From these sources Clark, an Australian political scientist at Oxford University, paints a multifaceted picture of the many diverse objectives of gacaca held by various constituencies in Rwanda and the apparent impact of each.

Of course being Rwanda, we can take for granted that deep divisions will characterise attitudes toward gacaca as it characterises every other aspect of Rwandan life. Gacaca has its inevitable cheerleaders, tied in one way or another to the government, who will brook no criticism, as well as its automatic detractors for whom anything associated with the Kagame RPF (Rwandan Patriotic Front) government is automatically anathema. Clark repudiates both camps.

One welcome development in the field is the emergence of a group of Rwandan scholars who have been studying gacaca and who have begun writing about it. Clark is familiar with both the Rwandan and non-Rwandan literature on the subject and is excited by the prospect that forthcoming books and articles by Rwandans are likely to offer new insights into the genocide and its aftermath, including the operations of the gacaca courts.

It has been one of the characteristics of the genocide in Rwanda that its history has largely been told by outsiders, specifically muzungu from the west. This is especially true of the literature in English. The limits of what can almost be called the neocolonial view of Rwanda are clear from Clark’s analysis of the writings of Rwandans and non-Rwandans on gacaca. He finds in general that the Rwandan writers are more sympathetic to gacaca, the foreigners more critical.

On the whole, his own conclusions place him considerably closer to the Rwandan writers than to other outsiders like himself. While far from uncritical about how gacaca has operated and about certain roles played by the government, his own expansive view of the many dimensions of gacaca, which he argues many outsiders largely ignore, make him by and large a cautious admirer of the entire project.

While all the classic 1948 convention genocides share an overriding characteristic – the planned and organised conspiracy to eliminate an entire identifiable group – each has certain unique aspects as well. In Rwanda, it was the intensity, the very short timespan, the massive number of killers who were ordinary citizens, the fact that killer and victim might have been drinking or attending church together only days earlier and, above all, the extraordinary reality that once the genocide was finally defeated, killers and survivors often went back to living on the same hill.

Within a few years the prisons were swollen with accused genocidaires, all Hutu, totalling as many as 130,000 souls living in the most squalid of conditions. It was in the face of this unprecedented phenomenon that all attempts at justice and reconciliation had to be designed. To say the task was daunting does not begin to give a sense of the complexities. These realities, as Clark points out, have often been downplayed by gacaca’s (and Rwanda’s) many harsh foreign critics.

Despite the flowering of so-called truth and reconciliation commissions across the globe, post-conflict goals are in fact not always universally shared. Indeed, as we often forget, many are in conflict or tension with each other. Besides justice, democracy, truth and reconciliation, there are the equally elusive goals of peace, ending impunity, healing, forgiveness, national unity, harmony, short-term relief, longer-term reconstruction and development.

And all of these are to be acted on by a new government that, to say the least, does not enjoy universal support and that is dependent on miniscule human and financial resources and barely rudimentary infrastructure. In Mahmood Mamdani’s telling formulation, in the early years after the genocide Rwandans wanted democracy and justice. More precisely, few Rwandans wanted both. Hutu wanted democracy and the Tutsi-led RPF government wanted justice.

Gacaca, Clark learned, had many initiators, and most of the objectives listed above were promoted by one or another of them. For a country with no resources, it was a remarkably ambitious project, unlike anything ever tried before anywhere. And not only were the goals massive, so was the process.

Clark notes that by design, gacaca involved virtually the entire population of the country. A huge percentage of Rwandans participated in some way or another over the years, including literally hundreds of thousands who were witnesses or judges elected by the community. The implication of this needs to be spelled out, for it is widely misunderstood: Given these numbers, it is evident, and crucial, that large numbers of Hutu were directly involved.

The challenges confronting the gacaca project seemed all but insurmountable – a shattered, traumatised, exhausted society living in a world of hurt and mistrust. It is against that reality that gacaca must be judged, but often is not.

Among the most severe critics of gacaca, to the surprise of many, have long been Amnesty International (AI) and Human Rights Watch (HRW). In fact their criticisms began even before gacaca was formally launched and has not relented ever since. As Clark observes, these groups could not get beyond their conviction that nothing ever passes muster other than formal, Western-style practices where defendants have access to trained legal counsel and cases are heard by trained, experienced judges. Of course, even the richest of Western countries have trouble meeting these ideal conditions.

According to Amnesty, gacaca ‘fails to meet internationals standards for fair trails and lacks independence, impartiality and transparency’. HRW equated ‘Rwanda’s highly discredited gacaca courts’ with American military procedures in Guantanamo Bay. As Clark shows, many non-Rwandan authors have echoed these criticisms, though few Rwandans agree. Similarly, many of these non-Rwandans, including AI and HRW, strongly criticise the decision to keep the crimes of the RPF out of gacaca’s jurisdiction.

If it were up to these critics, presumably Rwanda would have introduced the entire panoply of international legal processes that has characterised the International Criminal Tribunal for Rwanda (ICTR) sitting in Arusha, Tanzania. There would be lawyers and judges and registrars and more lawyers and appeals, logically with the same results as the ICTR, where to date about 1,000 staff have completed 52 cases since 1995 at a cost of some US$2 billion.

In comparison, total Rwanda government spending on the direct running of gacaca was US$39 million. While Clark criticises the Rwanda government for ‘grossly overstating’ the number of suspects prosecuted at a million, his own estimate is that gacaca ‘certainly has succeeded in prosecuting hundreds of thousands of suspects and probably completed the backlog of genocide cases’. This, by the way, includes the wholly unexpected multitude of new suspects who were identified at the gacaca trials themselves plus thousands of murder suspects who had been transferred to the gacaca courts from the national courts.

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