Abstract
This chapter faces the issue of reconciliation in Rwanda focusing on the contribution made by gacaca courts. Efforts to build unity and reconciliation made by Rwandan post-genocide state are initially sketched and different ad hoc mechanisms are discussed, including the National Unity and Reconciliation Commission , ingando and abunzi . Due to the initial lack of definition of the concept of reconciliation by the Rwandan Government, the progressive conceptualization of the term is also given attention. Genocide denial laws and ‘memory wars’ occurring in Rwanda are in the spotlight of the chapter, as this allows us to have an in-depth insight in the governmental policy of memorialization of the genocide. This policy, culminating in the adoption of the contested Law 13/2008 on genocide ideology , is a clear instance of ‘public use of history ’ and has imposed severe limitations on freedom of expression in post-genocide Rwanda. The results of interviews conducted in Rwanda regarding the role of gacaca in Rwanda’s reconciliation process are presented. Particular attention is paid to the conceptualization of the concept of reconciliation by Rwandans and its key components, namely truth , justice, healing and reparation .
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Notes
- 1.
On reconciliation, please see Parmentier and Sullo 2011, pp. 335–352, on which I strongly rely.
- 2.
See UN Security Council 2004.
- 3.
- 4.
Bloomfield 2006, p. 4: ‘Crucially, this absence of consensus is observable not only among scholars and their writings; it is also reflected in policy circles, within governments, donor agencies, INGOs, IGOs, and so on. Moreover, it also finds parallels among most actors in real post-violence contexts, too: victims, offenders, governments, individuals, politicians, community leaders, NGOs, religious and cultural organisations, and the like’.
- 5.
See UN Security Council 2003, p. 3.
- 6.
Ibid.
- 7.
See Smith 2004.
- 8.
On this point, see Goodhand and Hulme 1999, pp. 13–26.
- 9.
On this point, see Lambourne 2001, pp. 311–317.
- 10.
Bloomfield 2006, p. 9.
- 11.
Ibid. Bloomfield summarises the main reason for the Spanish ‘exception’ as follows: ‘There is no evidence whatsoever that in thirty years Spanish democracy has been under any direct threat from untreated wounds related specifically to the civil war or the dictatorship. Spain, however, remains something of an exception. Couched securely within Western Europe and – crucially – in the stabilising context of the European Union, its democratisation was always protected and underpinned by that regional stability’.
- 12.
See on this point Ley por la que se reconocen y amplían derechos y se establecen medidas en favor de quienes padecieron persecución o violencia durante la Guerra Civil y la Dictadura, passed by the Congress of Deputies on 31 October 2007.
- 13.
On this point, see BBC News, Franco inquiry polarises Spain, http://news.bbc.co.uk/2/hi/europe/7679457.stm. Last accessed 28 February 2018.
- 14.
Chinique, May 2009, interview on file with the author.
- 15.
Phnom Penh, May 2008, interview on file with the author. Interestingly Bloomfield explains some of the reasons why victim groups can resist reconciliation, Bloomfield 2006, p. 6: ‘When informed of a forthcoming reconciliation process, victims often jump to the conclusion, and on good grounds, that this will mean they must give up some claims, or accept imperfect justice, or be forced unilaterally to forgive those who made them suffer. Here is the confusion of process and end-state.’
- 16.
See Bloomfield 2006, p. 5: ‘Perhaps we should not expect such perfection of understanding: we are dealing with an area of human activity – violent conflict and its aftermath – which has by its nature a degree of confused, emotional and apparently non-rational thinking and behaviour in its workings (…) The positive side of this multiplicity means that we can generate distinct and multidimensional versions of practice that better suit specific contexts, without the need to produce definitive, universal models. The downside, however, is that we must learn to live with a degree of flexibility and self-conscious contradiction in our processes of definition.’
- 17.
See Lederach 2001, p. 842.
- 18.
See Chapman 2002, p. 1.
- 19.
See McCandless 2001, pp. 209–222.
- 20.
See Bar-Tal and Bennink 2004, pp. 11–38.
- 21.
See Lederach 2001, pp. 841–854.
- 22.
Ibid.
- 23.
See Hamber and Kelly 2004.
- 24.
See McCandless 2001, pp. 213.
- 25.
See Bar-Tal and Bennink 2004, pp. 26–27.
- 26.
See Kriesberg 2001, p. 48.
- 27.
See Brounéus 2003.
- 28.
- 29.
See Bloomfield 2006, p. 11.
- 30.
Ibid.
- 31.
Ibid., p. 21.
- 32.
On this point, see Lambourne 2004, p. 24.
- 33.
King 2011, p. 135.
- 34.
Ibid.
- 35.
On this point, see Clark and Kaufman 2009, pp. 199–201.
- 36.
King 2011, pp. 145–146.
- 37.
Ibid., p. 140; see also Brounéus 2010.
- 38.
On this point, see Van der Merwe et al. 2009.
- 39.
Bloomfield et al. 2003.
- 40.
See Galtung 1969, pp. 167–191. He sharply distinguished between negative peace as the outcome of efforts to stop physical or personal violence (direct violence), and positive peace as the goal of efforts to end indirect structural and cultural violence (indirect violence) that threaten the economic, social and cultural well-being and identity of individual human beings and groups.
- 41.
Bloomfield et al. 2003, p. 18.
- 42.
When Rwanda was approaching the presidential election scheduled for August 2010 worrisome deeds were reported, including the launch of grenades in Kigali city centre. See Reuters, UPDATE 1-Grenade Attacks Kill 1, Wound 30 In Rwandan Capital, http://af.reuters.com/article/rwandaNews/idAFLDE61J0AD20100220 as well as ANSA, Ruanda, attentati a Kigali: un morto http://ansa.it/web/notizie/rubriche/mondo/2010/02/20/visualizza_new.html_1706123122.html.
- 43.
On this point, see Molenaar 2005, p. 40.
- 44.
See Article 178 of the Rwandan 2003 Constitution.
- 45.
See NURC 2004, p. 15; and Thomson 2011, p. 333.
- 46.
Today all those who are admitted to a university in Rwanda are first required to attend ingando.
- 47.
A National ingando Centre was constructed in Nkumba, Northern Province, as a permanent facility house with the capacity to accommodate up to 900 residents.
- 48.
Thomson 2011, pp. 333–334.
- 49.
Ibid., p. 334.
- 50.
See Article 159 of the Rwandan Constitution.
- 51.
According to a report issued by the NURC, their role should be better defined, as it could overlap with that of the abunzi. On this point, see Evaluation and Impact Assessment of the National Unity and Reconciliation Commission (NURC), Final Report Institute for Justice and Reconciliation (IJR), December 2005, p. 12.
- 52.
See NURC Opinion Survey on Participation in gacaca and National Reconciliation, January 2003 (Hereinafter: NURC Opinion Survey 2003).
- 53.
Interview, Kigali, 20 July 2009, on file with the author.
- 54.
Kigali, July 2009, on file with the author. This data is confirmed by other field research. See for instance Molenaar 2005, p. 50.
- 55.
See NURC, Rwanda Reconciliation Barometer, October 2010, available at http://www.nurc.gov.rw/index.php?id=70&tx_drblob_pi1%5BshowUid%5D=16&tx_drblob_pi1%5BbackPid%5D=70&cHash=e13dfe7c26d96b9cdc19d7531ba78bfe. Last accessed 6 June 2015.
- 56.
Ibid., p. 15.
- 57.
Ibid., p. 18.
- 58.
Report available at https://freedomhouse.org/report/freedom-world/2013/rwanda. Last accessed 10 February 2018.
- 59.
See Perinçek v. Switzerland, application n. 27510/08, Judgement, 15 October 2015, Grand Chamber. See also https://globalfreedomofexpression.columbia.edu/cases/ecthr-perincek-v-switzerland-no-2751008-2013/. Last accessed 19 March 2017.
- 60.
See Cajani 2012.
- 61.
Sullo 2013, p. 443.
- 62.
Ibid., p. 444.
- 63.
Cajani 2012.
- 64.
Santayana 1905, p. 284.
- 65.
Todorov 2009, p. 448.
- 66.
Cajani 2012, pp. 371–373.
- 67.
See Huttenbach 2002, p. 167.
- 68.
Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through the use of computer systems, 28 January 2003.
- 69.
Surprisingly, however, under para 2 of the mentioned Article 6, a party may also ‘reserve the right not to apply, in whole or in part, para 1 of this article’. This protocol shows the reluctance of member states of the Council of Europe to punish conducts consisting of the simple expression of ideas, no matter how historically unfounded or reproachable. See Cajani 2012, note 1, p. 382.
- 70.
Amnesty International 2010, p. 11.
- 71.
Sullo 2013, p. 434.
- 72.
Sullo 2018.
- 73.
Waldorf 2009a, p. 102.
- 74.
Ibid.
- 75.
See Jansen 2014, p. 194.
- 76.
See Article 34, Rwandan Constitution 2003: ‘Freedom of the press and freedom of information are recognized and guaranteed by the State. Freedom of speech and freedom of information shall not prejudice public order and good morals, the right of every citizen to honour, good reputation and the privacy of personal and family life. It is also guaranteed so long as it does not prejudice the protection of the youth and minors. The conditions for exercising such freedoms are determined by law. There is hereby established an independent institution known as the “High Council of the Press”. The law shall determine its functions, organization and operation’.
- 77.
See Article 9 of the African Charter on Human and Peoples’ Rights: ‘1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express and disseminate his opinions within the law’.
- 78.
Waldorf 2009a, note 69, p. 108. The Commission held that ‘government must prosecute and take measures against persons who continue to stir up … the ideology of MDR PARMEHUTU which is based on discrimination and division, particularly those leaders of MDR who head these actions’. See also Amnesty International 2010, note 14, p. 11.
- 79.
Human Rights Watch (HRW) has reported that ‘when asked to define “divisionism” not one judge interviewed by HRW researchers was able to do so, despite each having adjudicated and convicted defendants on divisionism charges’. See Human Rights Watch 2008, p. 34.
- 80.
Avocats Sans Frontières 2011.
- 81.
Ibid., pp. 79 and 83.
- 82.
Rwandan Republic, Ministry of Justice, the 9th and 10th periodic report of the Republic of Rwanda under the African Charter on Human and Peoples’ Rights, July 2005–July 2009, July 2009, p. 22.
- 83.
UN Human Rights Committee 2009.
- 84.
See Jansen 2014, p. 196.
- 85.
Avocats Sans Frontières 2011, note 74 p. 51.
- 86.
Translation by the author.
- 87.
See Avocats Sans Frontières 2011, note 74 p. 78.
- 88.
See Amnesty International 2010, p. 18.
- 89.
Law N° 18/2008 of 23/07/2008 Relating to the Punishment of the Crime of Genocide Ideology.
- 90.
Waldorf 2009a, note 69. p. 109.
- 91.
Joint Government Assessment, Rwanda, Draft Final, 23 July 2008, pp. 73 and 79.
- 92.
Article 19 ICCPR states that: (1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. (3) The exercise of the rights provided for in para 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.
- 93.
See Article 19, Comment on the Law Relating to the Punishment of the Crime of Genocide Ideology of Rwanda, London, UK, September 2009, at 9.
- 94.
Paragraph 2, General Comment No. 34, 12 September 2011.
- 95.
Paragraph 4, General Comment No. 34, 12 September 2011.
- 96.
Paragraph 6, General Comment No. 34, 12 September 2011.
- 97.
See Human Rights Committee, General Comment No. 11: Prohibition of Propaganda for War and inciting national, racial or religious hatred, (Article 20): 07/29/1983.
- 98.
Paragraph 50, General Comment No. 34, 12 September 2011.
- 99.
Paragraph 51, General Comment No. 34, 12 September 2011.
- 100.
See Article 19, 2009, note 84, p. 11: ‘Article 7 provides that any association, political organisation or non-profit making organisation convicted of the ideology of genocide shall be punished through its dissolution or a fine of 5,000,000 to 10,000,000 Rwandan francs (approximately €6,145–€12,290) without prejudice to individual liability of any participant in the commission of the crime. Many such associations and organisations, including non-governmental organisations in Rwanda, would be bankrupted if they were levied such a fine for overstepping the low threshold for genocide ideology.’
- 101.
See Article 3(1) of the Convention on the Rights of the Child, entered into force in Rwanda on 23 February 1991.
- 102.
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), adopted by General Assembly resolution 40/33 of 29 November 1985.
- 103.
See Sullo 2012, pp. 127–151.
- 104.
See Article 19, 2009, p. 12.
- 105.
Ibid.
- 106.
Ibid.
- 107.
See Lemarchand 2006, p. 26.
- 108.
Amnesty International 2010, p. 19.
- 109.
Ibid., Rwandan Government statistics on genocide ideology in 2009: ‘When Amnesty International requested statistics which disaggregate convictions, acquittals and sentences for “genocide ideology” or “divisionism” and which demonstrate which courts these cases had been tried in, the National Public Prosecution Authority said they did not hold such records (…). Of 749 cases of “genocide revisionism and other related crimes” which were brought before Rwandan courts in 2009, 260 resulted in acquittals. It is not clear, however, from the statistics what constitutes a crime related to “genocide revisionism” and how many of these were prosecuted under the 2008 law on “genocide ideology”.
- 110.
See Article 19, op. cit., supra, note 84, p. 4.
- 111.
See Waldorf 2011, pp. 48–60.
- 112.
See National Unity and Reconciliation Commission, Manuel pour les camps de solidarité et autres formations, October 2006, p. 81, 83, 154, 162. See also Tim Davis, Rwanda: Ingando Camps a ‘Government tool for social engineering’, NGO News Africa, at http://ngonewsafrica.org/archives/9805. Last accessed 5 April 2013.
- 113.
See Human Rights Watch 2008, p. 36.
- 114.
Ibid., p. 38.
- 115.
National Assembly, ‘Rapport d’analyse sur le problème d’idéologie du genocide evoquée au sein des établissements scolaires’, December 2007.
- 116.
République Rwandaise, Rapport de la Commission Parlementaire ad hoc crée en date du 20 janvier 2004 par le Parlement, Chambre des Députés, chargée d’examiner les tueries perpétrées dans la province de Gikongoro, l’idéologie génocidaire et ceux qui la propagent partout au Rwanda, at 161; Rwandan Senate, Rwanda, Genocide Ideology and Strategies for its Eradication, 2006.
- 117.
Ibid., p. 40, National Assembly, ‘Rapport d’analyse sur le problème d’idéologie du genocide evoquée au sein des établissements scolaires’, December 2007.
- 118.
Interview with Avocats Sans Frontières representatives, Brussels, 13 March 2016, on file with the author.
- 119.
See on this point Court of Higher Instance, Huye, No. RP 0015/07/TGI/HYE RPGR 40832/S2/06/MR/KJ, Prosecutor versus Célestin Sindikubwabo, 24/4/07.
- 120.
Amnesty International 2010, supra, note 14, pp. 21–22.
- 121.
See Jansen 2014, p. 211.
- 122.
Ibid.
- 123.
Ibid., p. 199.
- 124.
Ibid., p. 200.
- 125.
Ibid.
- 126.
Ibid.
- 127.
Ibid., p. 192.
- 128.
Ibid., p. 205.
- 129.
See Waldorf 2011, p. 48.
- 130.
ICTR, Kanyarukiga Decision on the Prosecution’s Appeal Against Decision On Referral Under Rule 11bis, para 26, 30 October 2008.
- 131.
High Court of Justice, Vincent Brown aka Vincent Bajinja (et al.) v. Government of Rwanda and the Secretary of State for Home Department [2009] EWHC 770, 8 April 2009, para 62.
- 132.
Organic Law modifying and complementing the Organic Law No. 11/2007 of 16/03/2007 concerning the transfer of cases to the Republic of Rwanda from The International Criminal Tribunal for Rwanda and other states, Official Gazette, 26 May 2009, Article 2—Guarantee of rights of an accused person.
- 133.
On this point, see Emmanuel R. Karake, Rwanda: Govt Seeks to Amend Genocide Ideology Law, All Africa, http://allafrica.com/stories/201211030056.html. Last accessed 12 February 2018.
- 134.
On this point, see Human Rights Watch 2014: ‘A revised version of the 2008 law on genocide ideology was promulgated in October. It contains several improvements to the 2008 law, including a more precise definition of the offense and the requirement to demonstrate intent behind the crime, thereby reducing the scope for abusive prosecutions. However, several articles retain language that could be used to criminalize free speech. The new law reduces the maximum prison sentence from 25 to 9 years’, available at https://www.hrw.org/world-report/2014/country-chapters/rwanda. Last accessed 12 February 2018.
- 135.
See Law No. 01/2012/OL, Instituting the Penal Code, Official Gazette of Rwanda, June 14, 2012.
- 136.
See Law No. 84/2013, Law on the Crime of Genocide Ideology and Other Related Offenses, Official Gazette of Rwanda, Sept. 9, 2013.
- 137.
See Jansen 2014, p. 208.
- 138.
Ibid., p. 209: ‘Genocide ideology is an element of negationism under the 2013 Law. However, what constitutes genocide ideology remains elusive. (…) Furthermore, if negationism has as an element the willing advancement of genocide ideology, it is unclear what differentiates crimes under Article 5’s “negationism” from “genocide ideology” as proscribed by Article 3’.
- 139.
Ibid., p. 210.
- 140.
See Waldorf 2009a, note 69, p. 104: ‘Since 2008, however, the government has reemphasized ethnicity in describing the 1994 genocide. A constitutional amendment added new ethnicized language to that portion of the preamble that stresses reconciliation: “Emphasizing the necessity to strengthen and promote national unity and reconciliation which were seriously shaken by the 1994 tutsi genocide and its consequences” (original emphasis). References to the genocide throughout the 2003 Constitution were modified in a similar fashion.’
- 141.
On this point, see the National Commission to Fight against Genocide, at http://cnlg.gov.rw/news-details/?L=1&tx_ttnews%5Btt_news%5D=405&cHash=6fb6516eb965683bbae1ad37e6cefec9. Last accessed 15 February 2018, ‘The Pentecostal church in Rwanda (ADEPR) Commemorates the Genocide against the Tutsi’: ‘The event took place at Nyabisindu parish in the Nyamabuye sector, a Muhanga district in the Southern Province where ADEPR members on the national level gathered to remember victims who perished at the parish. The event was attended by Muhanga Mayor, ADPER Spokesman at the national level, Police and army officials in the district, and CNLG representative Ndahigwa Louis who was the guest of honor at the function. Among the speeches and testimonies given at the event, various people condemned the priests who during the genocide, participated or stood by as innocent people were being mercilessly murdered. It is believed that hundreds of people, who had sought refuge in the God’s temple thinking they will be safe, were left to the hands of killers who brutally killed them. At the event, 121 victims were decently buried. In his speech, Mr. Ndahigwa Louis stressed that if priests kept their faith and act according to God’s word, there would have been a much bigger number of people who survived the genocide. He further explained the stages of genocide which end with genocide denial. He therefore called on those present at the event to play their role in fighting genocide denial through telling the real story of what happened during the genocide. He ended the speech thanking those who had courage to hide people who were being hunted and also the former RPA soldiers who bravely engaged the genocidal forces and halted the genocide’.
- 142.
Interview with Agnes, participant in the gacaca hearings before Gahogo judges, 27 September 2009, on file with the author.
- 143.
1 September 2009, gacaca jurisdiction of sector, Gahogo.
- 144.
Kigali, October 2009, interviews on file with the author.
- 145.
Ingelaere 2016, p. 91.
- 146.
Nyabisindu, 16 September 2009, interview on file with the author.
- 147.
Pozen et al. 2014, pp. 31–52.
- 148.
Nyabisindu, 15 September 2009, interview on file with the author.
- 149.
Interview with a representative of the Rwandan diaspora in Belgium, The Hague, 10 October 2010; interview with representatives of Penal Reform International, Human Rights Watch, Liprodhor, Kigali, September–October 2009, on file with the author.
- 150.
Ibid.
- 151.
Ibid.
- 152.
Ibid.
- 153.
See Clark 2010, p. 316.
- 154.
See NURC Opinion Survey 2003.
- 155.
On this point, see Clark 2010, pp. 257–307.
- 156.
This is also in line with the position expressed by other scholarship. See, for instance, Clark 2010, p. 273.
- 157.
Ibid., p. 203: ‘The theme of truth, its discovery, propagation, and the extent to which it should be pursued along with other objectives in the post-conflict environment, is a perennial consideration in transitional societies’.
- 158.
Donat-Cattin 1999, p. 873.
- 159.
See Rotberg 2000, p. 3: ‘If societies are to prevent recurrence of past atrocities and to cleanse themselves of the corrosive enduring effects of massive injuries to individuals and whole groups, societies must understand—at the deepest possible levels—what occurred and why’.
- 160.
See Clark 2010, p. 203: ‘Individuals’ and groups’ recollection of the past often clash and may be expressed for a variety of well-intentioned or cynically instrumentalist reasons. Therefore, attempts to produce an account of the past that will adequately represent, and be acceptable to, all individuals and groups who engage in the post-conflict truth process are inherently limited and likely to prove acrimonious’.
- 161.
See Truth and Reconciliation Commission of South Africa, Report, Vol. I, 1998. The case of the South African TRC is quoted by way of example and not because its efforts in truth finding have necessarily brought to always unveil the ‘real truth’ about the abuses of apartheid regime. On the contrary, the problem of the truthfulness of the declarations made by the applicants before the Amnesty Committee of the TRC remains open. The number of the applicants requiring amnesty is undoubtedly lower than the figures of the crimes perpetrated during the time covered by the TRC’s investigative mandate which unquestionably challenges the idea of a perfect reconstruction of the truth. For more details see Lollini 2005, pp. 198–201; and Mamdani 2001, pp. 58–61.
- 162.
See Ignatieff 1996, p. 113.
- 163.
See UN Commission on Human Rights 2005.
- 164.
Principle 3 states that: ‘A people’s knowledge of the history of its oppression is part of the heritage and, as such, must be preserved by appropriate measures in fulfilment of the State’s duty to remember. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments’.
- 165.
See on this point Truth and Reconciliation Commission of South Africa, Report, Vol I, 1998, p. 113.
- 166.
Ibid., p. 114.
- 167.
Ibid., p. 26 and p. 258, note No. 3, Chapter 3; the first who has articulated this distinction was Professor Thomas Nagel of New York University.
- 168.
See Aryeh Neier, What Should Be done about the Guilty?, New York Review of Books, 1 February, 1990, p. 34: ‘Acknowledgement implies that the state has admitted its misdeeds and recognized that it was wrong’, available at http://www.nybooks.com/articles/1990/02/01/what-should-be-done-about-the-guilty/. Last accessed 16 February 2018.
- 169.
Mendez 1991, p. 8.
- 170.
See on this point Azanian Peoples Organization (Azapo) and Others v. the President of the Republic of South Africa and Others 1996 (8), in Butterworth’s Constitutional Law Reports/BCLR 1015 (CC), available at http://www.saflii.org/za/cases/ZACC/1996/16.html.
- 171.
- 172.
Pozen et al. 2014, pp. 31–52 and pp. 41–48.
- 173.
See Ingelaere 2016, p. 82 and pp. 84–91.
- 174.
See Ingelaere 2008, pp. 25–58.
- 175.
See Waldorf 2006a, p. 75, holding that as a consequence of this climate only in 2002 about 6,500 Hutus left the country afraid to be accused before gacaca.
- 176.
- 177.
- 178.
See Consideration of Reports Submitted by States Parties Under Article 40 Of the Covenant, Concluding observations of the Human Rights Committee, Rwanda, Human Rights Committee Ninety-fifth session, New York, 15 March–3 April 2009.
- 179.
On this point, see Waldorf 2006a, p. 26: ‘Where East Timor and, to a lesser extent, Sierra Leone adapted local dispute resolution practices to their truth and reconciliation commissions, Rwanda did something radically different, transforming a largely moribund local dispute resolution mechanism into a highly formal system for meting out (largely retributive) criminal justice” and p. 52: ‘Some observers have described the gacaca for genocide cases as traditional or indigenous even though few “customary” features remain. The new gacaca system is an official state institution intimately linked to the state apparatus of prosecutions and incarceration, and applying codified, rather than “customary” law. Second, gacaca courts are judging serious crimes, whereas traditional gacaca mostly involved minor civil matters. Third, gacaca judges are not community elders as in the past, but rather elected, comparatively young, and nearly one-third women. Finally, “[t]he main difference between the traditional and the new systems is probably the destruction of the social capital that underlies the traditional system”.
- 180.
Human Rights Committee, ninety-fifth session New York, 15 March–3 April 2009, Consideration of reports submitted by States parties under Article 40 of the Covenant Concluding observations of the Human Rights Committee, Rwanda, para 14.
- 181.
Ibid., paras 15 and 18.
- 182.
Haile 2008, p. 34: ‘At best, therefore, they combine the worst features of the two different systems: the arbitrariness of some of the traditional justice systems and the coercive features of the modern criminal justice system’.
- 183.
See Ibuka et al. 2012, p. 9.
- 184.
See Haile 2008, p. 33.
- 185.
Ibid.
- 186.
Ibid., pp. 34–35. Ugandan President Museveni and some of the founders of Rwandan Patriotic Front for instance, have been trained with Mozambique’s liberation movement (FRELIMO), which established revolutionary courts.
- 187.
See Ibuka et al. 2012, p. 9 and ff.
- 188.
Article 32 of Organic Law 8/1996: ‘Damages awarded to victims who have not yet been identified shall be deposited in a victims Compensation Fund, whose creation and operation shall be determined by a separate law’. Prior to the adoption of the law creating the fund, damages awarded shall be deposited in an account at the National Bank of Rwanda opened for this purpose by the Minster responsible for Social Affairs and the Fund shall be used only after the adoption of the law’.
- 189.
Article 29 Organic Law 8/1996.
- 190.
See on this point African Rights and Redress 2008, p. 100.
- 191.
Ibid.
- 192.
See Ibuka et al. 2012, p. 8.
- 193.
Ibid.
- 194.
As a consequence, only the Specialized Chambers could deliver orders of compensation.
- 195.
Article 95 Organic Law 16/2004 establishes that: ‘The reparation proceeds as follows: 1° restitution of the property looted whenever possible; 2° repayment of the ransacked property or carrying out the work worth the property to be repaired. The Court rules on the methods and period of payment to be respected by each indebted person. In case of default by the indebted person to honour his or her commitments, the execution of judgement is carried out under the forces of law and order’.
- 196.
See African Rights and Redress 2008, p. 102.
- 197.
See Waldorf 2006a, pp. 17–18.
- 198.
See Organic Law No 69/2008 of 30 December 2008 relating to the establishment of the Fund for the support and assistance to the survivors of the Tutsi genocide and other crimes against humanity committed between 1 October 1990 and 31 December 1994, and determining its organisation, powers and functioning, Article 20.
- 199.
Ibuka et al. 2012, p. 8.
- 200.
Ibid., p. 9.
- 201.
See Rombouts 2006, pp. 194–233.
- 202.
Ibid.: ‘The adoption of the categories of genocide and massacres to define beneficiaries has not allowed for explicit reference to the many forms of gender-based violence, such as rape, sexual violence, and gender-specific mutilations. The only harms indirectly recognized are those done to orphans, handicapped, and widows, who are mentioned as explicit examples of people in need’.
- 203.
See Penal Reform International 2007, p. 5 and Jean-Marie Mbarushimana, then Executive Secretary to Community Service, Community Service in Rwanda, Kigali, February 2004.
- 204.
See point 1.2. This text drafted in 1990 is available via the website of the United Nations High Commissioner for Human Rights at https://www.ohchr.org/EN/pages/home.aspx.
- 205.
Interview with a representative of IBUKA, Kigali, 3 October 2009, on file with the author.
- 206.
See Penal Reform International 2007, p. 7, interview with Mr. Anastase Nabahire, Associate Executive Secretary of the Executive Secretariat of the National Committee of Community Services (SNTIG), 13 January 2006, n°1146.
- 207.
See Penal Reform International 2007, p. 8.
- 208.
See African Rights and Redress 2008, p. 105.
- 209.
Ibid., p. 106.
- 210.
See African Rights and Redress 2008, p. 106.
- 211.
See Chakravarty 2015, p. 17, quoting an article on the Rwandan Newspaper The New Times.
- 212.
See Penal Reform International 2007, p. 2.
- 213.
Ibid., p. 65.
- 214.
See Ibuka et al. 2012, p. 14.
- 215.
King, 2011, p. 135.
- 216.
Ibid., p. 136.
- 217.
Kanyangara et al., ‘‘Collective Rituals, Emotional Climate and Intergroup Perceptions: Participation in Gacaca Tribunals and Assimilation of the Rwandan Genocide’’, Journal of Social Issues 63, no. 2 (2007): 387–403, pp. 398–400, quoted in U. King, ‘‘Healing Psychosocial Trauma in the Midst of Truth Commissions: The Case of Gacaca in Post-Genocide Rwanda. “Genocide Studies and Prevention 6, 2 (August 2011):134–151.
- 218.
King and Sakamoto 2015, p. 389.
- 219.
Ibid.
- 220.
King and Sakamoto 2015, p. 389.
- 221.
Ibid.
- 222.
Ibid.
- 223.
Regine U. King, ‘‘Healing Psychosocial Trauma in the Midst of Truth Commissions: The Case of Gacaca in Post-Genocide Rwanda. “Genocide Studies and Prevention 6, 2 (August 2011):134–151, p. 145.
- 224.
Ibid.
- 225.
Alfred Allan, ‘‘Truth and Reconciliation: A Psycholegal Perspective’’, Ethnicity and Health 5, no. 3–4, 2000, p. 193, quoted in King, p. 134.
- 226.
Interview with a genocide victim in Gahogo, September 2009, on file with the author.
- 227.
Interviews with members of the Dukundane Family, Kigali, 26 October 2009.
- 228.
Ingelaere 2016, pp. 84–90.
- 229.
Interview with Simon Gasibirege, Kigali, 27 September 2009, on file with the author.
- 230.
See National Unity and Reconciliation Commission, Opinion Survey on Participation in Gacaca and National Reconciliation, January 2003, available at http://www.nurc.gov.rw/index.php?id=70&no_cache=1&tx_drblob_pi1%5BdownloadUid%5D=18. Last accessed 26 June 2016, pp. 91–92.
- 231.
Ibid., p. 92. According to the survey ‘Women are less inclined than men to believe that traumas caused by the genocide have been decreasing since 1995 (difference of 7%) and are many to give credit to the hypothesis of trauma increase (difference of 5%) with Gacaca’.
- 232.
Ibid. According to the survey ‘Survivors think that trauma levels have decreased since 1995, but with much less conviction than the general population. They strongly believe, more than prisoners and the general population, that traumas will increase during Gacaca (94%). However, it is necessary to state that, among prisoners, those who are young are more convinced that Gacaca will increasingly traumatize (approximately 10%) survivors. Catholic survivors are more convinced (+9%) that there has been a reduction in the trauma since 1995. Followers of new churches do not notice as much of a decrease (−6%) in trauma levels. Prisoners who attend the same new church anticipate a greater increase in these trauma levels during gacaca (+17%). New churches seem to sensitize prisoners more about survivors’ traumas and alleviating anticipations of sufferings by survivors outside of prisons. Survivors who attend their church services regularly (one time a week) believe more strongly (10%) that the traumatisms of the genocide have gradually decreased since 1995’.
- 233.
Brounéus 2010, p. 409.
- 234.
King 2011, p. 138.
- 235.
Ibid., p. 142.
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Sullo, P. (2018). The Reconciliation Process in Rwanda. In: Beyond Genocide: Transitional Justice and Gacaca Courts in Rwanda. International Criminal Justice Series, vol 20. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-240-8_8
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