Gacaca Courts in Post-Genocide Rwanda
Radha Webley
Researcher
Based on Fieldwork Conducted in Rwanda, Summer 2003

The word "gacaca" is derived from the Kinyarwanda word for "lawn" or "grass," its etymology thus betraying the origins of the gacaca system as a community-based model of conflict resolution, originally used within local Rwandan communities as an informal means of resolving disputes around issues such as land rights, theft, marital issues, and property damage. In their current form, however, although the gacaca courts still quite literally take place "on the grass" of communities across Rwanda, the gacaca system currently being implemented in this small country is a combination both of this traditional participatory model and of classical legal precepts.

This current incarnation of the gacaca system in fact now comprises one of three judicial mechanisms (along with the International Criminal Tribunal for Rwanda and the national Rwandan court system) that are currently in the process of trying the tens of thousands of Rwandan prisoners who stand accused of having committed crimes of genocide. No longer simply a means of resolving relatively minor interpersonal disputes, the revived and revised gacaca system currently being implemented across Rwanda is seen as a key legal mechanism for bringing the perpetrators of the 1994 genocide to justice, and is envisioned as a critical means of punishing their crimes and of thus eradicating what is commonly referred to as a widespread "culture of impunity" in Rwanda.

The gacaca system, however, is also regarded as a key means of establishing a record of truth relating to the events of the genocide, and of forging renewed trust and solidarity amongst the Rwandan people. Thus, the Rwandan government views this system not only as a means of practically accomplishing the delivery of justice to the 100,000+ accused persons still awaiting trials, but also as a key restorative mechanism in post-genocide Rwanda, one of the principal means by which their goal of national reconciliation can be achieved.

No small undertaking, the gacaca trials will, when fully operational, be held weekly in 10,000 local jurisdictions nationwide, and will involve 250,000 popularly elected "judges" as well as the collective participation of all local community members as witnesses and as jurors. First implemented in a June 2002 pilot phase, this system expanded in November 2002 and is expected to be operational nationwide in the near future. Although the gacaca system is structured around a four-tiered model that assigns different categories of crimes to different levels (local, sector, district, province) of the court system, the fundamental unit of the courts are the weekly meetings of the the local ("cellule") courts that take place weekly within local Rwandan communities. In this context, community members gather weekly to collectively consider the charges brought against accused individuals, and to provide testimony surrounding these cases. The gacaca "judges," elected by their communities on the basis of their personal integrity and honesty, serve to guide these weekly meetings. They are also, however, legally entrusted to render judgements in relation to the cases brought before them, based on the evidence voiced by the community.

As mentioned above, genocide suspects in Rwanda are divided into four categories, and the gacaca courts have jurisdiction over all but the highest category of these genocide suspects, which "Category 1" suspects comprise those accused of having led or organized the genocide, of having abused positions of authority, of having committed acts of particular ferocity, or of having perpetrated acts of sexual violence during the genocide. Although the gacaca system's jurisdiction does not extend to suspects of this highest category, their jurisdiction does include category two, three and four suspects, which categories include individuals accused of having committed murder or having acted as an accomplice to murder, as well as those who stand accused of serious assault or property crimes. While the gacaca courts do not have the power to administer the death sentence, they are empowered to impose sentences up to and including life imprisonment. The sentencing process within the gacaca system, however, is relatively flexible, as all convicted offenders have the option of serving half of their sentences doing community service projects, and as convicted offenders who have confessed to their crimes are awarded significantly reduced sentences.

II. Concerns regarding the gacaca process
The gacaca system promises a truly revolutionary means of approaching questions of justice and reconciliation in post-genocide Rwanda. Nonetheless, scholars and researchers have voiced a number of concerns regarding the courts. These concerns revolve around legal issues, logistical and operational points, and questions sourrounding the central issue of community participation. Turning first to legal issues, the principal concern of most observers revolves around the failure of the gacaca courts to adhere to international legal standards. In a report published in December 2002, international human rights watchdog Amnesty International [http://web.amnesty.org/library/eng-rwa/index] outlined a number of issues in this regard, including the unlikely adherence of the gacaca courts to the principle of the presumption of innocence; reports of confession under torture; the lack of prohibition against double jeopardy (individuals already acquitted under the national courts can still be tried under the gacaca courts); the potential lack of accountability in province-level gacaca courts where there is no public participation; and, finally, the lack of the available resources necessary to ensure fair trial standards such as the right to a prompt trial, and the right of suspects to self-defense.

In addition, this report, as well as later reports published by African Rights and by a Harvard University research team [http://www.fas.harvard.edu/~socstud/rwanda/], all voice a number of concerns regarding the competence of the gacaca judges and their ability to properly fulfill their role within the courts. These reports cite doubts regarding the judges' objectivity and impartiality; the potential conflict of interest for the judges when their own relatives stand accused of crimes; possible corruption; the possibility of there being genocidaires amongst the judges (there have already been documented cases of elected judges being accused of having killed during the genocide, who were then removed from the bench and imprisoned as a result of these accusations - see Judicial Diplomacy, "Judges on Trial" http://web.amnesty.org/library/eng-rwa/index); the lack of compensation for the judges that makes it difficult for them to fully exercise their duties and that also makes them more vulnerable to corruption; and the minimal training that the judges are given in preparation for their positions (in general, this training was only six days long).

All of these concerns represent issues voiced long before the gacaca courts were actually launched. Now that this system is well underway, however, observers and researchers have continued to note yet further concerns regarding the actual implementation of the courts. The first set of these observations notes various logistical challenges that the gacaca courts are facing as they begin the intial stages of their operation. The Harvard University study [http://www.fas.harvard.edu/~socstud/rwanda/] cites such issues as consistently delayed start-times; the lack of shelter from heat and rain for the courts (which, like the traditional gacaca courts upon which this new system is based, generally take place in open outdoor areas, or "on the lawn"); the fact that the set quorum (fixed at 100) for the courts' weekly meetings presents problems for both small and large cellules; and the lack of available mechanisms for dealing with people participating in the meetings who are accused in the course of the gacaca proceedings. This report is corroborated by a series published by Lawyers without Borders [www.asf.be] that, based on weekly observations of a number of gacaca courts across Rwanda, echoes all of these same issues.

Perhaps the most important question in this regard, however, is the observed slowness of the courts. Initially launched in June 2002, the gacaca courts were supposed to have long ago been fully operational nation-wide, but in actual fact the gacaca courts have yet to begin in all but a relative few of the 10,000 gacaca jurisdictions across Rwanda. Even in communities where the weekly meetings have already begun, the incredibly slow pace of these courts begs the question of whether these courts will, regardless of their broader reconciliatory intentions, be able even to fulfill their practical goal of rendering justice for the several tens of thousands of suspects still awaiting trial.

Perhaps the most serious concerns in relation to the gacaca courts, however, are those that surround the question of participation. The gacaca courts are founded on the premise that collective community participation in providing information will allow the courts to correctly assess and thus to sentence the suspects on trial. As is clearly illustrated by the Lawyers without Borders reports [www.asf.be], however, and as was evident as early as the 2002 pilot phase when the Harvard University study [http://www.fas.harvard.edu/~socstud/rwanda/] was undertaken, communities in which gacaca courts are already underway are clearly demonstrating an increasing hesitance to fully participate in the weekly meetings. Other studies echo this widespread reluctance to participate in the weekly gacaca meetings, and observe that even amongst the people physically present at the meetings, only a few people within the group tend to actively (verbally) participate. These reports also note that community residents are, in general, not very forthcoming in naming accused persons. They cite lack of information about the gacaca process as one possible reason behind this reticence to participate, as well as the inherent problem of testifying in an environment where security remains a critical issue, and where intimidation against testifying and fear of retaliation remain salient issues for much of the population. Finally, many observers note the particular reticence of women to testify in relation to acts of sexual violence.

Another critical concern regarding the gacaca system revolves around the fact that the gacaca courts, in trying only crimes that fit the legal definition of genocide, ignore the many documented war crimes attributed to the Rwandan Patriotic Army, or RPA (which army was responsible for bringing an end to the genocide and evolved into the Rwandan Patriotic Front party that now monopolizes the present government). Observers note that the failure to broaden the jurisdiction of the gacaca courts to include these other war crimes has resulted in the widespread impression that the gacaca courts represent little more than "victor's justice," and have thus led to widespread demoralization amongst both judges and general community members whose participation is fundamental to the courts. Amnesty International [http://web.amnesty.org/library/eng-rwa/index] posits that this failure to address the question of RPA war crimes in the context of the gacaca courts is directly responsible for at least some of the observed drop in attendance at the courts.

Perhaps the most significant critique of the gacaca courts, however, is not related to any of these legal, operational or participatory concerns, but revolves around the tendency of the present gacaca system to be conducted in a top-down manner that detracts from the reconciliatory and restorative purposes upon which this community-based system is founded. With armed security forces present at many of the weekly meetings, and with coerced participation a relatively frequent trend, all of these reports note that the sense of "community ownership" that is supposed to be driving this system is, in fact, largely absent from their weekly operations. In this light, Amnesty International [http://web.amnesty.org/library/eng-rwa/index] notes that gacaca, in its present form, is no longer a community-generated effort of restorative justice, but has instead become a state-run means of retributive justice. At the same time, African Rights questions whether the goal of reconciliation at the heart of the system's foundation will, in practice, be subsumed by bureacracy. In this regard, the independence of the courts in relation to the influence of administrative officers also stands as a key concern.

All of these different issues aside, however, it must be remembered that the gacaca process has really only just begun. Whether these many issues continue to plague the gacaca system or whether they are progressively overcome is a question that can only be answered by the future. What is already resoundingly clear, however, is the significance of this process for the future of Rwanda, for in a real sense, how Rwanda as a nation and how local Rwandan communities deal with these different issues in relation to the gacaca process will be a telling sign of Rwanda's ability to face the more general vicissitudes of the post-genocide period.

For more information, see:
・ African Rights: Gacaca Justice - A Shared Responsibility
・ Amnesty International: Gacaca - A Question of Justice (December 2002): http://web.amnesty.org/library/eng-rwa/index
・ Avocats sans Frontieres (Lawyers without Borders), www.asf.be
・ Catalogue of websites about Rwanda:
o www-sul.stanford.edu/depts/ssrg/africa/rwanda.html
・ Harvard University Study (October 2002) http://www.fas.harvard.edu/~socstud/rwanda/
・ Judicial Diplomay - Judges on Trial: http://www.diplomatiejudiciaire.com/UK/RwandaUK12.htm
・ The Rwandan Government's official website on gacaca: www.inkiko-gacaca.gov.rw
・ The Rwandan Government's National Unity and Reconciliation Commission, www.nurc.org.rw
・ Penal Reform International, "PRI Research Team on Gacaca, Report III," [http://www.penalreform.org/download/Gacaca/Apr-Jun2002.pdf]
・ Penal Reform International, PRI Research on Gacaca Report, Report IV, The Guilty Plea Procedure, Cornerstone of the Rwandan Justice System." [http://www.penalreform.org/download/Gacaca/Jan2003.pdf]