Gacaca - A Paradigm for Restorative Justice in Rwanda
| Author | Kate McKenna |
| Position | Senior Sophister LLB Candidate, Trinity College Dublin |
| Pages | 5-27 |
GACACA
-
A
PARADIGM
FOR
RESTORATIVE
JUSTICE
IN
RWANDA
KATE MCKENNA*
It
has
been
almost
twelve years
since
the Rwandan
genocide
took
place
where
an
estimated
937,000 Tutsi and
moderate
Hutu
Rwandan were
massacred largely
at
the
hands
of
the
Hutu
militia
(the
Interhamwe).'
Following
the Rwandan Patriotic
Army's
restoration
of
the
peace,
the
democratic
Tutsi
led
Government
of
National Unity was
faced
with
the
failure
of
both
the
International
Criminal
Court
for
Rwanda
(ICTR)
and
the
state
established
genocide chambers.
To
deal
with
the
remaining
80,000
persons
detained
in
overflowing prisons
(cachots)
2
on
suspicion
of
perpetrating war
crimes,
the
government launched
an
ancient system
of
customary
law
called
Gacaca.'
This was
initially
launched
in
June 2002
on
an
exploratory basis
and
has
been
fully
implemented
since
March
2005.'
Organic Law No.
16/2004
establishes
the
organisation, competence
and
functioning
of
Gacaca
Courts
charged
with
prosecuting
and
trying
the
perpetrators
of
the
crime
of
genocide
and other crimes
against
humanity
.Senior
Sophister
LLB
Candidate,
Trinity
College Dublin.
The
author
would
like
to
thank
Donal
Coffey
for
his
helpful comments
on
an
earlier
draft
of
this article.
1
The
Interhamwe
were the
extremist militant
force
of
the
Mouvement
Revolutionaire
Natinale
pour
le
Developpement
(MRND)
government. These individuals
were
suspected
to
have
incited
or
ordered
the
killings
apparently
sought
to
prevent
the
implementation
of
the
Arusha
Peace
Agreement signed
on
4
August
1993.
2
Amnesty
International Report, "Rwanda -
A
Question
of
Justice"
(17
December
2002)
Al
Index:
AFR
47/007/2002,
at
III
(2),
describes
the
horrific living conditions
of
the post-
genocide Rwandan
prison
system. They
report:
...
severe
overcrowding
and
unsanitary
conditions
within
Rwandese
prisons
amounts
to
cruel,
inhuman
and
degrading treatment. Preventable
diseases,
malnutrition
and
the
debilitating effects
of
overcrowding
have
resulted
in
a
reported
11,000
deaths
between
the
end
of
1994
and
end
of
2000.
See,
3
Pronounced
ga-Cha-cha.
Gacaca
is
Kinyarwanda for
'lawn-justice',
named after
the
place
where
the
local
community
traditionally gathered
to settle
disputes between
members
of
a
family,
between members
of
different
families
or
between inhabitants
of
the same
hill.
4
"Rwanda:
Gacaca
Courts
begin
Operations"
IRIN,
Lakes&SelectC
ountry=RWANDA>
(visited
10
January 2006).
©
2006
Kate
McKenna and Dublin University
Law Society
Trinity College
Law
Review
committed
between October 1
st
,
1990
and
December
31'
t,
1994.
The
new
Gacaca
tribunals
merge
customary practice
with
a
Western
formal
court
structure. While
this
new
system,
known
as
Gacaca,
is
presented
as
an
updated
form
of
an
indigenous conflict
resolution
practice,
it
raises
various
due
process concerns
and has
a
substantially different
function
and
authority
to
a
formal
Western
court.'
The objectives
of
the
Gacaca
process
are
to
achieve
accountability,
justice
and
reconciliation,
and
to
speed
up
the
criminal
justice
process.6
Reconciliation
was
seen
by
the
government
as
a
national
goal.
7 Therefore,
it
will
provide opportunities
for
survivors,
victims'
families
and perpetrators
to
speak
about the genocide
thus
brining
an
end
to
the
silence,
while
also
punishing
those
found
guilty
of
war
crimes
and
crimes
against humanity.
This
will
be
done in
a
restorative
justice
setting
by focusing
on
the
individual's
guilt
and
shame for
their
crimes
against
the community.' The
Government
of
Rwanda
have
since
attempted
to
eradicate the
legacy
of
impunity
in
Rwanda
and
achieve
maximal
accountability
for
the genocide
and
crimes against
humanity
committed
from
the
onset
of
armed conflict ranging
from the
1
st
of
October
1990
through
to the
31
"
of
December
1994.
The aim
of
this
article
is
to
assess
whether
Gacaca
can
achieve
its
stated
goals
of
achieving reconciliation
and
justice
by
highlighting
its
weaknesses, deconstructing
its
structure
and
questioning
the
government's
motive
in
choosing
this indigenous paradigm
of
justice
over
others.
Part
I
will
look
at
the
definition
of
restorative
justice,
while Part
II
will
examine
the
historical
background
of
Rwanda
to
explain
in
part
how
and
why
the
genocide
took
place.
Part
III
will
deal
with
the
implementation
of
the
Gacaca
jurisdictions
and will
give
a
detailed description
of
Gacaca's
structural framework,
both
in
its
statutory
form
and
its
operation
at ground
5
Werchick, "Prospects
for
Justice
in
Rwanda's
Citizen Tribunals"
(2003)
8
Human
Rights
Brief
3,
6 The
Rwandan
government
states:
The sheer bulk
of
genocide suspects and
cases
due for
trial
have
placed
severe
strain
on
Rwanda's
criminal
justice
system, which
is
already
crippled
by
poor
infrastructure
and
the
death
of
professionals
during
the
genocide.
Rwanda's
prisons
are
heavily
congested
and
the
cost
of
feeding and clothing
prisoners
is
a
drain
on
the
economy.
The
lack
of
an
adequate
number
of
prosecutors,
judges
and
lawyers
to
try
cases
exacerbates
the already
bad situation. At
the
present
rate
it would
take over
200
years
if
Rwanda
was
to
rely
on
the
conventional court
system
to
deliver
justice,
7
Moussalli,
" Report
of
the Special
Representatives
of
the
Commission
on
the Human
Rights
on
the
Situation
of
Human
Rights
in
Rwanda"
UN
GAOR,
55
th Session,
Provisional
Agenda
Item
116
(c)
UN
Doc
A/55/269
(4
August
2000),
i.pdf>).
Fullerton,
Trying
Genocide
Through
Gacaca,
www.gjp.ubc.ca/_media/srch/
030613
genocidethroughgacaca.pdf.
[Vol.
9
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