5 June 2003

Rwanda: Gacaca Courts Edge On

It is now exactly one year since twelve Gacaca pilot trials took off on June 19, 2002. These were followed three months later by hundreds of similar courts all over Rwanda.

Just before launching these semi-traditional tribunals, the Supreme Court estimated that it would take between three and five years to try all the suspects in their custody. Gacaca courts are expected to speed up the trials of over 80,000 suspects languishing in overcrowded Rwandan jails.

But of the 10,000 or so Gacaca courts that had been planned for, only 760 have begun their work. Even then, all are still in the pre-trial stages.

On top of those delays, two other problems have been identified as having greatly affected the smooth running of the operation: people's participation and questions as to the competence of the judges.

Starting the 'real trials'

Gacaca trials have to be preceded by a seven step pre-trial phase, a process involving the identification of victims and of suspects of the genocide, and categorisation of the suspects. The Sixth Chamber (the Gacaca department in the Supreme court) estimated that the 12 courts that opened in June 2002 would have completed the pre-trial process by February 2003. The 'real trials', as some people refer to them in Rwanda, would then start about March.

However, today, according to the spokesperson of the Sixth Chamber, Charles Kayitana, less than a half of the 12 'pilot gacacas' have finished the seventh and last step of the pre-trial phase. No single Gacaca trial has started in the country.

"We are now set to begin the next phase. We shall soon receive the green light from the supreme court", says Kayitana. He declines however to commit himself to any time frame. Observers say that the trials may not begin until the conclusion of the ongoing political process to end the transitional period. Late last month, the country held a referendum on a new constitution and is scheduled to hold presidential elections in July or August. A month later, parliamentary elections will be held.

Nevertheless, Klaas de Jonge, director of Penal Reform International (PRI), a human rights watchdog and one of the leading monitors of Gacaca, thinks that given the nature of Gacaca courts, the trials could still be completed in time. "With joint trials, we could see the trial phase take between two to two and a half years", says De Jonge.

Low attendances Currently, the Gacaca department is much more worried by the number of participants in the Gacaca sessions. A report released in January 2003 by the National Unity and Reconciliation commission indicated that only one quarter of the Rwandan population actively participated in the Gacaca process.

This decline in enthusiasm for gacacas has been attributed to many reasons. According to PRI director De Jonge, some people simply don't find so much interest in the pre-trial phase. He mentions cases where genocide survivors have turned away from the hearings after noticing that they couldn't present any evidence. There has also been reports of fears among some of the people that they could be denounced during the hearings.

Low attendance seems to have made some local authorities nervous. PRI and some observers last year accused some of them of coercing people to attend the trials, reporting that "local defence forces" obliged people in some villages to attend whereas others were "threatened with fines". These accusations however were directed at local "grass roots" authorities and didn't involve the Gacaca authorities on the national level.

This problem appears to have reduced over the last six months. "Cases of local authorities coercing people to attend have now decreased", says Niyibizi Ruben, head of Centre de Documentation et d'Information sur les Procès de Génocide (CDIPG), a project monitoring genocide trials for local human rights organisation, LIPRODHOR. "I think people are slowly realising that the courts (Gacacas) are their own and the authorities now seem to respect peoples' choices on whether to participate or not", he adds. PRI also thinks there has been improvements over the last few months.

"We can and should be permitted to make our own choices", says 25-year-old trader, Theo Habamungu outside a Gacaca hearing in Nyarugenge (Kigali city). "Otherwise we shall lose trust in Gacaca (?) I must say however that things look better now", he adds.

On the judicial front, however, there hasn't been any report of interference from any level of authority. Before the start of Gacaca courts, some observers warned of a possibility of political leaders and other persons of influence in society hijacking the process. "Until now, we haven't seen authorities or any other persons trying to influence the process", confirms Niyibizi.

Educating the 'men of integrity' A second problem has surfaced over the past months concerning the Gacaca judges. Generally, the integrity of Gacaca courts mostly lies in the hands of its judges, also known as 'men of integrity'. In October 2001, over 200,000 of them were elected across the country to preside over Gacaca courts, at which they seat on benches of 19.

Prior legal knowledge or, in most cases any basic formal education, were not preconditions for election as a judge. Possession of a high level of moral integrity was the major if not the only requirement.

The elected 'men of integrity' then underwent about six weeks of training in basic legal principles and Gacaca law. However, several reports from human rights organisations and the local press quickly expressed profound reservations about the competence of the judges. PRI often indicated in its reports that it was concerned with their level of education and its impact on the process.

"Sometimes I shudder at the thought of some of these judges deciding a genocide case", asserts Robert Sebufurira, editor-in-chief of Umuseso, a Kinyarwanda weekly.

"Gacaca is a new concept, there is no case law and there is nothing we can compare it to", says Sebufurira. "Even some people who are supposed to be guiding the rest don't seem to understand well how things work or shouldn't work", he adds referring to officials in the Sixth Chamber.

Across the country, several manifestations of the incompetence of the judges have been seen. Late last year, Hirondelle observed the president of a Gacaca court in the suburbs of Kigali during a pre-trial session to identify suspects of the genocide repeatedly refer to some witnesses as "génocidaires". In several other cases, judges appear confused about how to handle basic information adduced from the meetings or even how to make lists of suspects.

"I think some of my colleagues need a little more training", a judge who prefers anonymity says after a session in Bicumbi, some 40 km east of the capital Kigali. "We will otherwise meet a lot of difficulties when the crucial stage of the trials arrives".

The Gacaca department acknowledges that there is need for further training and says it will provide it to the judges as the process goes on. Its own observers, present throughout the country, have also occasionally advised Gacaca judges on procedures and the law. Furthermore, "we expect the judges to learn more from the experience they gain as Gacaca continues", says the spokesperson of the Sixth Chamber, Kayitana.

"Stimulating Gacaca" In a surprise new-year announcement, Rwandan president Paul Kagame decreed that judicial authorities provisionally release about 20,000 genocide suspects.

These, mainly, had pleaded guilty to the charges against them and risked spending longer in detention than the punishments provide for under the Gacaca law, assuming they are convicted.

Although the suspects will still face justice in their respective Gacaca courts, a substantial number of genocide survivors around the country and some of the released themselves, understood the release to be an amnesty. Some bitter survivors also think it will now be difficult to handle the suspects who will now attend trial from their homes. There are fears for the security of witnesses, survivors and any other accusers.

Some human rights organisations like African Rights say that the mass releases, the little sensitisation of the population that preceded them and the timing of the releases could damage trust and interest in Gacaca courts.

PRI director De Jonge agrees that the releases "could undermine the process (Gacaca) because of the authenticity of the confessions". He adds that the fact that most of the confessions of the released suspects were only corroborated by fellow detainees makes it difficult to accept their credibility.

The government on the other hand says that the releases were primarily a matter of respecting the rights of the accused and, at the same time, would "stimulate Gacaca". "These people know a lot. They will help the courts a lot in searching for the truth", says Hannington Tayebwa, head of judicial services in the ministry of justice.

With the conception of Gacaca courts, nobody ever expected a flawless judicial system or even one with minimal faults. And there is still general agreement among both the defenders and critics of Gacaca that it is a "last resort" solution to a major judicial crisis. Among many Rwandans, Gacaca also seems to be the most acceptable of all other local and international efforts to bring perpetrators of the 1994 genocide to justice. What remains to be seen is whether the errors can be kept within acceptable limits.

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