Saturday, April 7, 2012

Gacaca courts in Rwanda: 18 years after the genocide, is there justice and reconciliation for survivors of sexual violence?

(Our thanks to IntLawGrrls for the opportunity to publish this introductory post, the 1st in our 3-part series, which begins on the 18th anniversary of the genocide in Rwanda)

In January 2012, several years after we first met the courageous women and man featured in the book we co-edited, The Men Who Killed Me: Rwandan Survivors of Sexual Violence (2009), we re-interviewed fifteen of those survivors of sexual violence to learn how their lives had unfolded since the book’s publication. The fascinating turns in their lives will be depicted in a new book we are presently working on, describing how they have come to deal with the trauma of sexual violence and other atrocities in Rwanda’s post-genocide society.
Some of the questions we asked the fifteen survivors in January pertained to the workings of the gacaca courts: How did they view these courts, and what was their personal experience before them?
All survivors had either participated in gacaca in order to learn more about the fate of their loved ones or the whereabouts of their stolen property, or had testified in gacaca against men who had raped them or individuals accused of having murdered their loved ones.
When we first interviewed the survivors in 2008, we observed a tendency towards scepticism about gacaca and its potential to achieve justice and reconciliation for themselves and for Rwandans more broadly. Over three years later, and with gacaca proceedings coming to an end on 18 June 2012, we sought to uncover whether this sentiment had changed.

Gacaca and prosecutions for crimes of sexual violence
Although space doesn’t permit us to delve into the specificities of gacaca, it suffices to mention here that these courts were established to deal with the many cases involving individuals suspected of crimes during the Rwandan genocide. (Prior IntLawGrrls posts on gacaca here.)
In the 100 days of genocide that ravaged Rwanda from April to July 1994, an estimated 1 million Tutsi and moderate Hutu were killed, and 250,000 to 500,000 girls and women – mostly Tutsi – as well as boys and men, were raped by Hutu extremists. Many people were tortured and mutilated during the genocide, and their possessions looted or destroyed.
For Rwanda’s ordinary courts to deal with all cases arising from the genocide would have taken the government more than 100 years. Expediting the trials of alleged génocidaires was one of the motivations for setting up the gacaca, traditional Rwandan courts in which the community historically came together to deal with family or neighbourly disputes, and which were adapted as a mix of both customary law and classical penal state justice to deal with cases of genocide. Other aims of gacaca (which can be found in the Preamble to the Organic Law No 40/2000 of 26/01/2001 on gacaca and was amended several times thereafter), were to:
(1) uncover the truth of what happened during the genocide;
(2) address a culture of impunity by prosecuting the genocide’s perpetrators;
(3) reconcile Rwandans and support their unity; and
(4) prove that Rwandans had the capacity to settle their own problems through a system of justice based on Rwandan custom.
The gacaca courts involved the whole community; everyone from a certain community during the genocide was eligible to be present and to participate during proceedings in which alleged génocidaires of that community were tried.
This meant that everyone was a lawyer, witness and prosecutor at the same time.
With most of Rwanda’s lawyers having been killed during the genocide, gacaca judges were lay people of integrity appointed from the local community (in Kinyarwanda, referred to as Inyangamugayo). As described in Victimological Approaches to International Crimes: Africa – a 2011 book that one of us, Anne-Marie de Brouwer, helped to edit, and that is a source of information throughout this post – the use of lay persons had been a common occurrence pre-genocide, when only about 5% of judges had formal legal training. (above photo of gacaca judges by Samer Muscati)
Confessions, guilty pleas, repentance and apology played an important role in gacaca proceedings, and could lead to a significant reduction in the length of a sentence and community service – which could replace up to half the term of a prison sentence for those perpetrators of genocide who voluntarily confessed to their actions, and was intended, in part, to be an opportunity for perpetrators to provide practical assistance to victims and their families, thus encouraging reconciliation and peaceful cohabitation. In order to be done appropriately, the genocide’s perpetrators were to provide a detailed description of their crime, including where it was committed, who was victimized and – if there were any – where corpses were discarded, as well as revealing co-perpetrators and publicly apologizing to survivors and to Rwandan society.
This form of gacaca was launched in 2001 and the bulk of cases before the more than 12,000 gacaca courts, involving over 1.9 million génocidaires, were adjudicated between 2005 and 2011.
In Rwanda, rape and sexual torture were labelled ‘category one’ crimes, or among the most serious crimes committed during the genocide, whose accused would automatically receive, if convicted – together with the other ‘category one’ criminals, namely the organizers and leaders of the genocide – a sentence of life imprisonment. Notably, persons accused of ‘category one’ crimes could only benefit from such a reduction of their sentence if they confessed before the list of offenders was compiled at the end of the gacaca information-gathering phase. Moreover, persons convicted of crimes of sexual violence did not benefit from community service as alternative sentences, and they lost all their civic rights for life (including the right to vote, the right to engage in public or military service, and the right to be a teacher or work in the medical profession). As stated in a 2011 article, estimates of cases involving sexual violence prosecuted before the ordinary courts vary between less than 100 to less than 1,000.
In 2004, the gacaca law was amended to address problems encountered with cases involving sexual violence in the gacaca information-gathering phase. During this phase, information about rape and sexual torture was revealed in public by survivors and perpetrators alike, and this further stigmatised many victims of sexual violence, if they dared to speak out in public at all. The 2004 gacaca law was intended to address this issue by introducing closed sessions for hearing these crimes and by allowing anybody with information on sexual violence to report this to an Inyangamugayo, who in turn would report the case to the public prosecution authority for further investigation and prosecution in the ordinary court.
Although some cases of sexual violence were tried before ordinary courts prior to 2008, about 7,000 cases were tried between mid-2008 and mid-2009 by 17,000 Inyangamugayo in 1,900 gacaca courts, as detailed here.
Being among the most serious of crimes, cases involving sexual violence were initially intended to be dealt with by ordinary courts rather than the gacaca. However, in a bid to expedite the remaining trials and to provide justice long overdue for survivors of sexual violence (many of whom were very ill) together with resource constraints, an amendment to the genocide law in 2008 provided for the transfer of these cases from ordinary courts to gacaca. The amendment also incorporated several procedural rules that were meant to protect survivors of sexual violence and their families. Among these was the rule that victims of sexual violence could only testify against their rapist in closed session and perpetrators of sexual violence could only confess and plead guilty in a closed session, meaning only in front of judges and not before the general public as was the rule before gacaca proceedings. In case of a breach of confidentiality of the trial by an Inyangamugayo, the offending judge could be subject to removal from the bench and a prison sentence of up to three years. During a closed session, trauma counsellors were allowed to support survivors.
Because cases involving sexual violence were among the most difficult cases for judges to try and potentially traumatizing for the victims involved, it was decided in early 2008 that the Inyangamugayo were to receive training – with legal and psychological components – about how to deal with cases of rape and sexual torture. After the closure of gacaca, new claims can only be lodged by a victim of sexual violence (or another concerned party where the victim is dead or incapable) in order to protect the survivor from further stigmatisation by family and community members. Previously, accusations were sometimes lodged maliciously by others in order to expose and further stigmatise a victim.

(Tomorrow's post: Survivors' views on gacaca; Monday's post: Looking to the future)

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