Background

The election of Gacaca judges ( Inyangamugayo) was successfully realized in October 2001, with a very high rate of participation by ordinary Rwandans. The Rwandan people have indicated their support for the Gacaca law. Organisations representing genocide survivors have likewise voiced support, and even those accused of participating in the genocide, languishing in extended pre-trial detention, have carried out their own preliminary Gacaca processes, a sign of their support for the law. Training of Gacaca judges began earlier this month, and it is expected that trials in the Gacaca tribunals will get under way in mid-2002. The Danish Centre for Human Rights remains convinced that Gacaca offers a desperately needed hope of justice and a measure of closure in respect of the genocide.

The Judicial Defenders and preparations for Gacaca

The Danish Centre's own role in relation to post-genocide justice in Rwanda is primarily in the field of the work done by so-called “judicial defenders”. These defenders, paralegals with a special status under Rwandan law, have for over two years been counselling and representing victims and accused in genocide trials in Rwandan courts. While this project has been an uphill battle in many respects, it has been a worthwhile one. When we started this effort, few Rwandan lawyers were prepared to represent persons accused of genocide, few survivors could contemplate the thought of being represented by a Hutu, few accused by a Tutsi, few donors believed that we could seriously ensure quality legal representation in such sensitive, difficult cases by paralegals. Lastly, many defenders themselves had serious doubts about whether they would be accepted by both sides; they had concerns for their own safety and that of their families, they feared that the Rwandan public would not comprehend or appreciate the difference between offering legal representation and sympathising with extremist views.

This has been the struggle of the judicial defenders and of the DCHR. Today, we can fairly say that the vision which animated our part of Rwanda's struggle for justice has to some extent prevailed. Defenders have represented thousands of victims and many hundreds of accused. They have informed and counselled countless Rwandans, and have won the respect – albeit grudging – of lawyers. The Rwandan people have shown themselves

In relation to Gacaca, defenders have played a significant role in the process of informing the people of the content of the law and the working of the Gacaca tribunals. Over the course of the year 2001, members of the Corps of Judicial Defenders have visited villages, hills, cachots and prisons throughout the country to hold information sessions for the benefit of victims, accused and the ordinary people of Rwanda to explain the new law. In 1999, the defenders had already carried out a similar task in relation to the 1996 law on the genocide. Since the beginning of 2000, they have been representing victims and accused in genocide trials throughout Rwanda.

Currently, some 53 defenders are engaged in training Inyangamugayo, or Gacaca judges.

Over roughly the same period, the Rwandan government has been involved in a struggle of its own to convince its own people and the part of the world which is interested that the most appropriate way to tackle the problems of post-genocide justice in Rwanda is by using a modernized, formalized, official version of a popular justice system called Gacaca. In contrast to the traditional Gacaca, the new one will be backed by state power and involve the sentencing of the guilty to terms of imprisonment.

Some important elements of the Gacaca system are as follows :

-Only category I cases and cases previously transferred to the courts of first instance (currently numbering about 2,000 and 6,000, though it is not known how many more first category cases will result from the classification process by the cells) will remain with the ordinary courts. All other cases will be heard before the popular Gacaca tribunals.

- The Gacaca tribunals are constituted according to a pyramidal structure based on popular vote and the existing Rwandan administrative system. All citizens who reached the age of majority elected a panel of 20 people which in turn chose a coordination committee of 5. The coordination committee chooses a president and two secretaries, all of whom should be able to read and write Kinyarwanda. Each of the “cellules” chooses representatives to preside at the “secteur” level, and so on up to the communal and prefectural level, where the same structure and organs have been established. Officials of the existing administrative structures, or others occupying public posts or posts with NGOs were ineligible for election to the Gacaca tribunals.

-Cases of category II suspects will be prepared, and evidence gathered by the lower levels in the system (at the cellular level). Trials of these suspects will be held at the communal level. From there, appeal will be possible to the Gacaca tribunal at the prefectural level, which will be the tribunal of last resort.

- Trials before the “new Gacaca” tribunals will be held in public without recourse to rules of legal procedure. A simplified procedure is laid down in a manual produced by the Sixth Chamber of the Supreme Court. Written judgments will be made, based primarily on oral witness testimony. However, the dossiers prepared by the parquets will reportedly be summarized into fiches and made available to the cellule Gacaca. There will be no formal legal representation before the tribunals, either by state prosecutors or by trained counsel for defence or victims.

-The tribunals will be able to request assistance from a cadre of legal advisors on points of law.

The Gacaca tribunals will judge, convict and sentence on the basis of legal provisions very similar to the 1996 genocide law, including the generous sentence reductions for confession already present in the law of 1996. Thus, the tribunals will be competent to sentence convicts to terms of life imprisonment. However, a very significant change is that half of the penal terms will be served in community service instead of in prison.

Thus, Gacaca incorporates all of the basic elements which we are gathered here to discuss:

The perpetrators are offered encouragement to speak the truth, and the forum of justice is placed among the people of Rwanda, who are best placed to know that truth;
Justice, which can only be built on truth, is done to victims and accused. Justice involves here a substantial element of clemency, as society recognizes that many of the perpetrators were misled and manipulated in various ways;
Reconciliation is made possible through an open dialogue, of a kind familiar to Rwandan tradition.

However, reconciliation must be divided into the public and private spheres. As a Rwandan explained to me, public reconciliation means that the victim accepts the solution adopted by his society, although he may not feel personally satisfied. Personal reconciliation is a longer and more difficult process. It can only happen if there is repentance and forgiveness.

The challenges of Gacaca

The operational challenge The election of Gacaca judges (was successfully realized in October 2001, with a very high rate of participation by ordinary Rwandans. The Rwandan people have indicated their support for the Gacaca law. Organisations representing genocide survivors have likewise voiced support, and even those accused of participating in the genocide, languishing in extended pre-trial detention, have carried out their own preliminary Gacaca processes, a sign of their support for the law. Training of Gacaca judges began earlier this month, and it is expected that trials in the Gacaca tribunals will get under way in mid-2002. The Danish Centre for Human Rights remains convinced that Gacaca offers a desperately needed hope of justice and a measure of closure in respect of the genocide. The Danish Centre's own role in relation to post-genocide justice in Rwanda is primarily in the field of the work done by so-called “judicial defenders”. These defenders, paralegals with a special status under Rwandan law, have for over two years been counselling and representing victims and accused in genocide trials in Rwandan courts. While this project has been an uphill battle in many respects, it has been a worthwhile one. When we started this effort, few Rwandan lawyers were prepared to represent persons accused of genocide, few survivors could contemplate the thought of being represented by a Hutu, few accused by a Tutsi, few donors believed that we could seriously ensure quality legal representation in such sensitive, difficult cases by paralegals. Lastly, many defenders themselves had serious doubts about whether they would be accepted by both sides; they had concerns for their own safety and that of their families, they feared that the Rwandan public would not comprehend or appreciate the difference between offering legal representation and sympathising with extremist views. This has been the struggle of the judicial defenders and of the DCHR.

Today, we can fairly say that the vision which animated our part of Rwanda's struggle for justice has to some extent prevailed. Defenders have represented thousands of victims and many hundreds of accused. They have informed and counselled countless Rwandans, and have won the respect – albeit grudging – of lawyers. The Rwandan people have shown themselves In relation to Gacaca, defenders have played a significant role in the process of informing the people of the content of the law and the working of the Gacaca tribunals. Over the course of the year 2001, members of the Corps of Judicial Defenders have visited villages, hills, and prisons throughout the country to hold information sessions for the benefit of victims, accused and the ordinary people of Rwanda to explain the new law. In 1999, the defenders had already carried out a similar task in relation to the 1996 law on the genocide. Since the beginning of 2000, they have been representing victims and accused in genocide trials throughout Rwanda. Currently, some 53 defenders are engaged in training or Gacaca judges. Over roughly the same period, the Rwandan government has been involved in a struggle of its own to convince its own people and the part of the world which is interested that the most appropriate way to tackle the problems of post-genocide justice in Rwanda is by using a modernized, formalized, official version of a popular justice system called Gacaca. In contrast to the traditional Gacaca, the new one will be backed by state power and involve the sentencing of the guilty to terms of imprisonment.

Some important elements of the Gacaca system are as follows :

-Only category I cases and cases previously transferred to the courts of first instance (currently numbering about 2,000 and 6,000, though it is not known how many more first category cases will result from the classification process by the cells) will remain with the ordinary courts. All other cases will be heard before the popular Gacaca tribunals.

-The Gacaca tribunals are constituted according to a pyramidal structure based on popular vote and the existing Rwandan administrative system. All citizens who reached the age of majority elected a panel of 20 people which in turn chose a coordination committee of 5. The coordination committee chooses a president and two secretaries, all of whom should be able to read and write Kinyarwanda. Each of the “cellules” chooses representatives to preside at the “secteur” level, and so on up to the communal and prefectural level, where the same structure and organs have been established. Officials of the existing administrative structures, or others occupying public posts or posts with NGOs were ineligible for election to the Gacaca tribunals.

-Cases of category II suspects will be prepared, and evidence gathered by the lower levels in the system (at the cellular level). Trials of these suspects will be held at the communal level. From there, appeal will be possible to the Gacaca tribunal at the prefectural level, which will be the tribunal of last resort.

-Trials before the “new Gacaca” tribunals will be held in public without recourse to rules of legal procedure. A simplified procedure is laid down in a manual produced by the Sixth Chamber of the Supreme Court. Written judgments will be made, based primarily on oral witness testimony. However, the dossiers prepared by the will reportedly be summarized into and made available to the cellule Gacaca. There will be no formal legal representation before the tribunals, either by state prosecutors or by trained counsel for defence or victims.

-The tribunals will be able to request assistance from a cadre of legal advisors on points of law. The Gacaca tribunals will judge, convict and sentence on the basis of legal provisions very similar to the 1996 genocide law, including the generous sentence reductions for confession already present in the law of 1996. Thus, the tribunals will be competent to sentence convicts to terms of life imprisonment. However, a very significant change is that half of the penal terms will be served in community service instead of in prison.

Thus, Gacaca incorporates all of the basic elements which we are gathered here to discuss: The perpetrators are offered encouragement to speak the truth, and the forum of justice is placed among the people of Rwanda, who are best placed to know that truth; Justice, which can only be built on truth, is done to victims and accused. Justice involves here a substantial element of clemency, as society recognizes that many of the perpetrators were misled and manipulated in various ways; Reconciliation is made possible through an open dialogue, of a kind familiar to Rwandan tradition. However, reconciliation must be divided into . As a Rwandan explained to me, public reconciliation means that the victim accepts the solution adopted by his society, although he may not feel personally satisfied. Personal reconciliation is a longer and more difficult process. It can only happen if there is repentance and forgiveness. In order to succeed in bringing some form of closure for victims in respect of the genocide, Gacaca must succeed on several interlinked levels. It must have legitimacy, and it must succeed in functioning. The latter is relatively simple compared to the former. The largest challenge of Gacaca is that it attempts to combine a traditional approach which favoured reconciliation, and was based on an atmosphere where facts were incontrovertible and known, so that they did not need to be disputed. While this is true of the fact of the genocide, it is not necessarily true of the participation, and the degree of participation, of each accused. Traditional systems rarely have the same rigour in relation to factfinding that formal ones do. This focus on rigorous factfinding is both the strength and the weakness of formal systems.

Making Gacaca operational poses many challenges – these include elements related to the functioning of the Gacacas, such as the training of judges, ensuring conditions in which the Gacacas can function, making sure that judges appear for the sessions, holding these regularly and correctly, preparation, transmission and handling of fiches on the case files, and recording filing and transmission of judgments. There are also significant challenges in the areas of carrying out judgments – these are primarily related to community service work and compensation for the victims. Finding funds is a large part of this effort. Gacaca will not even be able to address the challenge of legitimacy without achieving success on this primary operational level.

Secondly, Gacaca must have legitimacy. Legitimacy is vital both for the present and for the future. It will be a vital part of Rwandan history . Post-genocide justice, it has been emphasised many times, must be one of the foundation stones on which a new Rwanda is built, so that future generations of Rwandans can look at it as the point in their history at which things decisively moved away from a culture of impunity and vengeance towards one based on human rights and the rule of law. For this, post-genocide justice must have the classical virtues of justice in all times – truth, equality, impartiality and fairness. Of these, truth is the greatest challenge. If all Rwandans feel that the complex truth of the genocide, on a local and national level, is really coming out of the process, it will gain this legitimacy. Victims, alone and frightened, often bribed (cf. Schotsmanns report) or threatened into silence by hostile neighbours whose husbands, brothers fathers and sons are in prison.

How do we encourage the accused and the guilty to speak the truth? How do we free the guilty? I am not speaking of opening the physical doors of their prisons, but rather of freeing them from the ideology of hatred and fear which imprisoned them in the suffocating mentality of a murderer. How do we free a child who was taught to hate and given a machete? Gacaca means actually providing a forum to the accused. It cannot work unless they too are permitted to voice their perceptions, however imperfect, warped or even malicious these views may seem. The government and people of Rwanda are taking a brave step. It is because they firmly and correctly believe that an open process, where even killers are allowed to speak, will confirm the truth of the genocide. 

The challenge of legitimacy – truth and fairness

There is also a challenge of ensuring the legitimacy of what is, despite the links with Rwandan tradition a completely new process of justice. First and foremost, this it is a question of immediate sociological acceptance by the people of Rwanda, on whom the entire process depends. While this has had a very positive beginning, a continuous effort must be made to ensure that legitimacy is not lost during what will be a long and arduous process. If people lose faith and fall away, Gacaca will fail.

Many factors are important in maintaining legitimacy. Among these are, that Gacaca is perceived as a fair and effective system that gives justice to all:

–recognition, and hopefully, compensation to victims;
–appropriate punishment for the guilty;
–release and rehabilitation for the innocent.

Reparation for the victims requires at least three things: an effective system, a positive and open spirit among the people, and funds.

For the guilty, Gacaca is potentially more than fair. With its large reductions in penalties and its introduction of community service, it is generous. But who are the guilty ? This is the crux of every justice system, including Gacaca. For Gacaca to be fair to the guilty and the innocent accused, it must have a fair way of identifying them. The guilty plea procedure is a part of this, but it cannot be the whole of it.

As we are dealing with law , and not with religion or morals, innocence must be defined, in Gacaca just as in any other justice system worthy of respect, as a lack of evidence , not as a lack of suspicion .

Here, we must remember two things. Firstly, all justice systems make mistakes. No justice system in the world is without notorious miscarriages of justice. Secondly, few things are more damaging to the credibility of a justice system than notorious miscarriages of justice. One wrongly decided case can destroy the faith of many people in the system. The system cannot work unless people believe in it.

Gacaca must succeed over a long period in mobilizing ordinary Rwandans to contribute a sustained level of commitment to a process which will not only be difficult, but also tedious. Will the tribunals be able to listen to the 300th case with the same commitment as the first or the second? Will the witness whose testimony is equally important in these two cases show the same commitment? Will the court be able to avoid a large difference in the judgments adopted between these two cases? High demands are placed on ordinary Rwandans. Only time will tell whether these challenges can be met.

The challenge of legitimacy – human rights standards

The legitimacy of Gacaca on the national and international levels are, of course, inextricably linked to one another. Despite the abandonment of Rwanda in 1994, Rwanda is a part of the world around it, influencing it and being influenced. Gacaca must gain legitimacy on the contemporary international level. This is of course linked to the issue of obtaining international funding, which will not be possible without a serious attempt to live up to internationally accepted standards of human rights.

Nevertheless, it is important to remember when considering the situation and the options for Rwanda that situation under the 1996 genocide law itself constituted a serious violation of the rights of many Rwandans. Post genocide justice is justice in extremis. Rwanda is faced not with a choice between one solution which violates rights and another which respects them, but rather with choosing the solution which best ensures respect for international standards. President Kagame has recently said that Gacaca is not a perfect solution . There is no perfect solution. The duty of Rwanda, and of the international community which owes a duty to this country, is to help find the best solution possible in the circumstances.

A wholehearted acceptance of, and participation in Gacaca by ordinary Rwandans, and empirical observance of an equitable and probing search for the truth will undoubtedly affect international perceptions, including those of a critical human rights community. Equally though, international criticism of Gacaca for not living up to universal and African human rights standards will negatively affect Gacaca's chances of success at the national level. Sustained doubts on the international level
will be repeated, silently or aloud, within and outside of the country, and will be used by critics with other agendas.

Donor willingness to provide this support will depend to some extent on the perception of the fairness of Gacaca, as measured against international human rights standards, particularly those on fair trial in Article 7 of the African Charter on Human and Peoples' Rights and Article 14 of the International Covenant on Civil and Political Rights . Functionality, in terms of the means to make Gacaca succeed, is tied to international legitimacy.

Several elements of the envisaged Gacaca process do not prima facie , conform to the above mentioned international and African human rights standards. The issues described below in particular are problematic.

The right to a remedy

The right of the victims of the genocide to a remedy is laid down in Article 2 of the ICCPR. In the Rwandan post-genocide context, a remedy includes the process of justice itself, but should also include compensation, which aims at going some way to restoring the dignity of the victims. This must be seen as the primordial and greatest single human rights challenge in post-genocide justice.

This involves a process of justice that gives public recognition of wrongs done, of suffering inflicted, naming of the persons responsible. In my view it requires also some compensation to be paid to the victims.

Judicial defenders and lawyers have assisted many victims to obtain court judgments awarding millions of francs in damages against the Rwandan state and individual perpetrators. The vast majority have not received even a single franc. It is shameful that so much money has gone to prosecuting a small number of persons in Arusha, while so little has gone to those who bear the scars of the genocide. Any new fund must avoid giving false expectations, but must endeavour to satisfy legitimate ones. Compensation for the victims is vitally important. Can we expect victims to accept clemency for the offenders if they, the victims, continue to be given worthless promises of compensation?

While there can never be adequate compensation for the wrongs done in 1994, attempts must be made. Remedies need not be completely based on the outcome of individual proceedings, although such proceedings are in themselves a part of the remedy. Beyond this, there is the question of psycho-social care for survivors, practical help for their families, protection against threats sometimes made by the families and friends of detainees. The international community must also be urged to contribute to any fund established, the Rwandan government must do everything necessary to establish and manage any fund with transparency and rigorous control to avoid abuse. However, the risk of corruption and abuse must not be used as an argument against donor contributions to a victims' fund. Joint Rwandan / donor management of a fund could be a protection against this. Mismanagement problems have not prevented the international community from pouring hundreds of millions of dollars into the ICTR.

There are also human rights problems in relation to the treatment of the accused. Before I embark on a discussion of these, I think it is necessary to preface them with some preliminary remarks. Mr Chairman, it may seem fastidious and mean spirited to raise criticisms of such an obviously well-intentioned initiative as Gacaca. If I nevertheless do so, it is because of two primary concerns. It is precisely because the DCHR has observed, with admiration and respect, the work of so may people involved with justice in Rwanda to try to render fairness in circumstances which would have caused many people to give up, that we are concerned to make sure that the process cannot be impugned. As stated above, Gacaca has, in addition to a duty to the martyred and the survivors, a duty to future generations of Rwandans. We don't want persons with revisionist agendas to be able to come and impugn the process by referring to non-compliance with human rights standards. Secondly, human rights standards must become a part of the vocabulary of Rwandan society, they are the only basis which can ensure a future where there will be no next round.

The right to legal assistance and equality of arms

With these words in mind, I will point out some problems:

(i)Denial of the right to legal assistance for both victims and accused (ICCPR Art. 14. 3 (d), African Charter Article 7;
(ii)An imbalance between the power of the state and the accused in the framework of the Gacaca trials, risking that the court will fail to be impartial (ICCPR Art. 14. 3 (e), African Charter Art. 7.1. ©.

A third area where problems could arise remains the problem of extended pre-trial detention. This is not dealt with in detail here, as it has been discussed amply in relation to the 1996 law. Gacaca is intended to vastly improve the human rights situation in relation to this problem, but in order to do so, it will have to function efficiently. A slow-moving Gacaca system could result in a continuation of the same problems.

The Gacaca law refers nowhere to the right to be represented, and government officials have repeatedly said that there will be no legal representation before the Gacaca tribunals. The government fear is that legal representation would make the process unduly technical, with the risk of alienating it from the people and of causing undue delay.
In relation to the so-called equality of arms doctrine the problem is that the parquet prepares its case against the accused and presents a written fiche to the Gacaca tribunal. The parquet has at its disposal professional investigators (with varying degrees of legal education) with a variety of means to collect evidence. The cell Gacaca then prepares another fiche, (on the basis of the parquet fiche and the cell Gacaca's own investigations). This new fiche is then transmitted to the appropriate Gacaca level. In effect, the cell Gacaca acts like a kind of parquet , as far as the accused is concerned.

The accused first comes into the picture when he appears for trial. He must then defend himself against charges that have been drawn up after a long process of investigation in which he has not played any role. There may be a risk that he will more or less have to prove his innocence, rather than the contrary. The accused does have certain rights at his trial. In particular, he can question witnesses. He does not seem to have an automatic right to ask for clarifications regarding the parquet 's fiche, though he can request the Coordinating Committee to make such a request. The cell Gacaca, on the other hand, can make such a request on its own behalf.

Our view is that the absence of the accused during the investigative stage may put him at a disadvantage when he comes to trial. The state (firstly in the form of the parquet, and secondly in the form of the cell Gacaca) is present through its opportunity to present a written dossier and to conduct investigations. In an ordinary (non-Gacaca) trial, this imbalance is corrected by the right of the accused to be represented at the hearing. Gacaca lacks this balancing element. Pre-trial counselling can help to restore the balance.

However, government officials have expressed willingness to consider permitting pre-trial counselling of persons accused of particularly serious offences on a pilot basis. The DCHR is working out a plan to carry on a pilot project giving pre-trial counselling to category II accused who do not confess, as it is these persons who risk the most serious punishment. This would, in our view, go a long way towards easing some of the above problems. We think that a lot can be done to correct the balance by helping the accused to prepare himself. A judicial defender can help the accused to prepare himself by asking the right questions of the witnesses who appear before the Gacaca tribunal. Advice and counselling will help the accused to use the rights which the Gacaca law gives him. On the other hand, after a chance to discuss the matter in confidence with an impartial, trained defender, the accused may well decide that the best option is to confess.

It is our view that counselling will not cause delays. A well-prepared accused is more likely to facilitate a quicker hearing, by making sure that the essence of the case is reached soon, without confusion. Nor will counselling result in the introduction of procedural, tactical manoeuvres, as these are not really possible in the Gacaca system. We think that there is a good chance that counselling will result in more confessions.

Counselling outside the trial should also be available to victims, to assist them to understanding the process, to gather the strands of their memories in order to present coherent and complete testimonies, and to provide some moral backup before a difficult ordeal. The other area where counselling and assistance will be important is in relation to filing claims before any compensation body.