HRW report misunderstood Gacaca

By Andrew M. Mwenda

In the last 14 years and with US $2.1 billion spent, less than 50 cases have been heard  in the Tribunal for Rwanda in Arusha

The most difficult subjects can be explained to the most slow-witted man if he has not formed any ideas of them already. But the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he knows already, without a shadow of doubt, what is laid before him.

Leo Tolstoy, 1897

Former Rwandan president, Pasteur Bizimungu, in the wake of inheriting a population where almost every Hutu above 14 years of age had either killed or aided in the killing during the genocide, argued strongly with the Rwanda Patriotic Forces to grant the population a complete amnesty. The RPF rejected this request, but the subsequent debates, which focussed on what was most politically and economically prudent for the country, produced a golden mean. The ringleaders of brutal acts would be jailed, while the followers would be pardoned through a system of restorative justice called gacaca or community courts.

By this time, over one and a half million people had been arrested and jailed; instead of working, they were idling in congested jails. Gacaca, it was reasoned, could speed up the handling of cases. It was not meant to be a court process to deliver justice on the basis of western criminal procedures, but a platform for communities to sit together under trees and adjudicate matters of genocide to ensure the country could heal without promoting impunity. In 1992 a census of Rwanda’s judiciary revealed there were only 39 qualified lawyers. Lawyers either became killers or were killed during the genocide, leaving the post-genocide government with only two qualified lawyers.

To compensate for the absence of a bar association, legal firms or lawyers, the Rwanda government embarked on a process of training lawyers at Butare University, even though it required importing the lecturers. Fifteen years later, Rwanda has 386 judges on its bench who are qualified lawyers; the bar association has 1,000 members; and there are more than 1,000 lawyers working in other government departments, private companies and NGOs who are not members of the bar.

But this laudable achievement is not without its imperfections: most of the judges in Rwanda are young graduates in their mid to late twenties, some of whom were required to sit as judges before they had even defended a case. Many miscarriages of justice, poor or even reckless judgements have ensued, but this is an inevitable part of an inherited quandary. Contrarily, in Uganda you cannot become a judge unless you have 13 years experience as a lawyer. This works because Uganda has a reservoir of talent from which judges can be picked.

Gacaca too is littered with imperfections. Nevertheless, in the last nine years gacaca has disposed of more than 1.2 million cases – a feat unprecedented in human history, and has undoubtedly helped the country move forward together.

Human Rights Watch’s assessment of this process, released in a report several months ago, fails to understand many of these achievements within the Rwandan context and the broader political value of gacaca. It is instead fixated on the process’ shortcomings and whether every conceivable legal protection was followed.

Perhaps HRW would have been more comfortable had Rwanda subjected its entire criminal population to the rigours of the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania where in the last 14 years and US $2.1 billion spent, less than 50 cases have been heard. Indeed, going by ICTR’s speed, it would have taken Rwanda 567 years to dispose of all its cases.

Moreover, in the court’s desire to meet all the procedural protections of a western court, it has inflicted untold psychological trauma on its witnesses. Rwandan women are brought before the ICTR and made to face men who raped them in full view of their children and husbands, and who then proceeded to kill their families as these women watched helplessly. As if that is not bad enough, the defence lawyers often ask the female victims to describe in graphic detail how the rape took place.

Anyone with human decency and knowing African traditions, norms and values would understand that many ordinary and even extraordinary women on our continent cannot handle this. In fact, many women, even in the west, collapse under such interrogation.

The ICTR budget for 2006 was US$230 million and US$250 million in 2007. The beneficiaries of this money are the wig-wearing judges and the defence lawyers that play their theatrics on Tutsi victims and other UN employees who earn hefty salaries. One only needs to go on the ICTR website to see how much money is spent on travel, medical and entertainment allowances of these lords of justice. Where is HRW, Amnesty International, Reporters Without Borders and all the other self-righteous international human rights groups that are supposed to “protect” the vulnerable? Why don’t they make a case of how US$2 billion can be spent on trying only 50 cases over 14 years when the Rwandan government, despite its weaknesses, spent less than US$10 million to try 1.2m people in half the time?

One needs to be either extremely prejudiced or ignorant or both not to see the fraud that is perpetrated in Arusha. Indeed, the approach of human rights groups itself disguises the problem. Across Africa, corrupt officials who inflict mass murder on our people do so with their pens. They are difficult to fight because when they are arrested they politicise the issue; they claim political persecution and form political parties to make their case. They hide behind legal procedures to defend their crimes and bribe corrupt judges to get away with murder. Ignorant of these realities, human rights groups jump into the fray to parrot their claims. Should anyone buy this?

It is in Rwanda that one can vividly witness the attempt to defend the institutional integrity of the state from particularistic pressures so that it can serve these voiceless ordinary people. But there can never be a war without collateral damage.

amwenda@independent.co.ug