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Transitional Justice Practitioners in Rwanda

Writing and Implementing the Gacaca Legal Framework
by

Astrid Jamar

on 30 September 2016

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Transcript of Transitional Justice Practitioners in Rwanda

Transitional Justice Practitioners in Rwanda: Writing and Implementing the Gacaca Legal Framework



Outline
What are Gacaca Courts?
The preamble of the 2004 gacaca law indicates that the process was put into place because of “the necessity to eradicate forever the
culture of impunity in order to achieve justice and reconciliation in Rwanda, … [to enable] rapid prosecutions and trials of perpetrators and accomplices of genocide, not only with the aim of providing punishment, but also reconstituting the Rwandan Society” (Official Gazette 2004).
Two Vignette Stories
Illustration of Implementing Dynamics
and Frictions between Policy and Practice
Closing Gacaca Courts
Adoption of the Gacaca termination law implies litigation of genocide crimes was a problem that had been dealt with?
Conclusion
What?
Scrutiny of the Gacaca process with an emphasis on Transitional Justice Practitioners:
How was the Gacaca process negotiated between donors and Rwandan Authorities?
How have the legal framework and implementating dynamics evolved ?

Why?
Underline Social and Political dimensions in writing and implementating the Gacaca process (beyond Static tradition and legal standards)
Challenge statement: "There were no alternative"
Draw attention to legacy of Gacaca process
How?
Research Methods:
Ethnographic fieldwork over 2012 to 2014 (Interviews, Participant observations, Gathering of policy documents)
Complemented by 12 months work experiences with 3 monitoring agencies (over 2008 - 2010)

Lecture Structure:
Brief Introduction to Gacaca Courts
Policy Dynamics through Vignette Stories
Inyangamugayo Training (2002)
Monitoring Dynamics (2004-2010)
Socio-political Implications
Closure of Gacaca Courts (2012): Un-tackled legacies of Gacaca
Conclusion

Post Genocide Context
Overcrowded prisons
(120,000 alleged genocide perpetrators)
Weakened judicial system
Other prosecutions initiatives: Classic Courts, ICTR, Trials under the universal jurisdiction
Despite serious concerns (in relation to the right of a fair trial), Gacaca is integrated in the TJ agenda.

Gacaca in Few Dates and Numbers
Creation and Adoption of the Gacaca Organic Law (by 2001)
Pilot Phase (2002)
Inyangamugayo Elections
Training of 260.000 Inyangamugayo (2002 to 2008)
Information Gathering at Cell Level
Monitoring of Trail Phase (2002-2010)
Process Acceleration (2007)
Transfer of Category 1 to Gacaca Courts (2008)
Termination and Competence Transfer (2012)

From 2004 to 2012, 15,300 gacaca courts ruled on over 2 million cases of genocide crimes.
Key Features of the Legal Framework
3 Categories of Crimes
Sentence Calculation grid (from material reparation to life imprisonment)
Guilty Plea - Community Work if Plea Accepted and Complete
But implementation affected by various local and national dynamics
Training of Inyangamugayo
Monitoring Dyamics
Transfer gacaca’s competence to classic courts and Abunzi
Open new cases and undertake a review of gacaca cases when:
an accused was found guilty of killing someone later found alive;
when more than one person has been condemned for the same crime without complicity between the accused;
when new incriminating information for a person acquitted is found; for decisions ruled by a gacaca bench found to have been corrupted (Art 10)
re-rule on cases for an extradited person sentenced by gacaca courts (Art 8)
Organise auctions of belongings of perpetrators found guilty for crimes against property that have not yet paid the victims (Art 14, 15, 17).
No additional body created to follow up to closure of Gacaca
No aid project following it up
Refusal to re-open some cases brought to justice
Some auctions organised by Abunzi
Lack of support for people still struggling with the process
Unclear how this law would be interpreted in mid- and long- term

Based on Jim Harvey's speech structures
First wide training: 6 days training for 572 trainers in November 2004
Organised jointly by ASF and SNJG, funded by USAID
Around 150 people by groups
16 topics covered in 2 hours each (e.g. philosophy of the gacaca courts, legal concepts, gacaca procedures, logistical aspects, trauma and conflict management)
Aim: "the training of 42,260 judges fit to provide impartial justice"
Observed issues: Mistakes by trainers explaining categorisation, sentence calculation, guilty-plea procedures, and the notion of complicity.
Socio-political Dynamics:
e.g. Heated debates about 'genocide ideology' and what qualifies as a crime to be prosecuted by Gacaca Courts
Influenced by local experiences of the genocide and community dynamics (see e.g. Ingelaere, Burnett)
Overall : 15.4 % illiterate, 92,000 removed, 443 dismissed for corruption

Training of Trainers
Overall: 15 sets of training
lasting from three to ten days
From 2002 to 2008
Contributed to Inyangamugayos’ misinterpretation of the law
Limited competences of judges
Serious social implications for people ruling on genocide crimes, and issued sentences of up to life imprisonment
Initially good feedback from all organisations involved
But NGO excluded from training process after first round of training
Impacts on Training of Inyangamugayo
Impacts on Gacaca Process
Overall:
Vehicle of many other social and political dynamics at national political and micro-social levels
Time and numbers over Justice Quality
Partial and negotiated truth
Judges corruption
Feeling of revenge, limited impact for reconciliation
Important impact of socio-political dynamics in between TJ practitioners (Donors, NGOs and Rwandan Authorities) and local context
Responding to fears of impartiality and lack of judicial guarantees through “reliable and rapid monitoring of instances where the spirit of gacaca is being violated ... to rapidly act ... and correct the process" (Uvin 2004)
5 Local NGOs, 4 INGOs and National Commission of Human Rights
More than 280 monitors the first years, numbers decreased drastically
Initially hopeful and influential
Dozens of monitoring reports produced
Serious challenges in Monitoring Programmes
Intervention of administrators in data gathering
Lack of contradictory debate
Limited judgements motivation
Errors in categorisation and sentence calculation
Presumption of culpability
Violation of Non bis in idem
Partial, negotiated and/or calculated guilty plea
Partial, negotiated and/or calculated testimonies
...
(See PRI, LIPRODHOR, ASF, HRW, CNDP monitoring reports)
Why and How?
What was observed?
Discussion channels disappeared gradually
Bureaucratic obligations made more difficult
Increasing internal tensions within monitoring agencies
Progressive disengagement from all stakeholders
Battles of Representation
How monitoring Evolved?
"At the beginning, the lobbying work was easy [from 2002]. We could say what we found pertinent. ... We could go and talk to a president of cell court [the leading judge of the lowest level of courts in the gacaca system]. It became gradually a difficult lobbying process through different levels, we could not anymore go and talk to the president of the court, we had to go through the sector coordinator, the district coordinator, and the lawyer (from the SNJG legal unit in which each province is supervised by one lawyer), it was a long and very difficult process" (Group Interview with NGO staff and former monitors, author’s translation from French, December 2012).
Rwandan people will have to deal with the consequences of the false accusation, false testimony, judicial mistakes, and unfair decisions widely cited in all these monitoring reports.
Gacaca Terminating Law (2012)
Transitional Justice Battlefield through Gacaca Courts

Representation Battlefield
Aid funded Technical Support: capacity to silence arguments about the conflict
Justice and truth-seeking:
Not simply technical exercises in which people tell their story
But involve negotiation over whose truth is more relevant and acceptable.
References
JamarAstrid. 2015. "Transitional Justice Battlefield: An Aidnography of Practitioners’ Everyday in Burundi and Rwanda", PhD Dissertation - University of Sussex, 2015.
Jamar, Astrid. 2012. “Deterioration of Aid Coordination in Gacaca Implementation: Dealing with the Past for a Better Future?” In Rwanda Fast Forward: Social, Economic, Military and Reconciliation Prospects, Palgrave Macmillan. Noack, P
Avocats Sans Frontières, 2010. “Monitoring Des Juridictions Gacaca - Phase de Jugement - Rapport Analytique N°5.”
Human Rights Watch. 2011. “Justice Compromised - The Legacy of Rwanda’s Community-Based Gacaca Courts.”
Ingelaere, Bert 2009. “‘Does the Truth Pass across the Fire without burning?’ Locating the Short Circuit in Rwanda’s Gacaca Courts.” The Journal of Modern African Studies 47 (04).
Penal Reform International. 2008. “Gacaca Research Report No.11: Testimony and Evidence in the Gacaca Courts.”
Waldorf, Lars. 2010. “‘Like Jews Waiting for Jesus’: Posthumous Justice in Post-Genocide Rwanda.” In Localizing Transitional Justice: Interventions and Priorities after Mass Violence, Stanford University Press. Shaw Rosalind, Waldorf Lars, Pierre Hazan.
Waldorf, Lars. “Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice.” Temple Law Review 79 (1).

Photos Credit: Main Picture: ©Elisa Finocchiaro - Creative Commons, What are Gacaca Courts: © Per-Anders Pettersson - Getty Images, Post-Genocide Context, Impact on Gacaca Process (Training) & Monitoring: © Astrid Jamar, © Alba Saray Perez Teran - Creative Commons, Conclusion: ©Elisa Finocchiaro - Creative Commons
Astrid Jamar's Lecture at Dundee International Law Society (DILS) University of Dundee - 3rd November 2015
Organic Law N°04/2012/OL of 15/06/2012 Terminating Gacaca Courts and
Determining Mechanisms for Solving Issues Which Were under Their Juridiction.
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