Rooting, Reforming, Restoring: A Framework for Justice in Rwanda

[1] The Gacaca (ga-CHA-cha) trials in Rwanda represent a radical and necessary alternative to the International Criminal Tribunal for Rwanda (ICTR) and the reconstructed state judicial system. Attempts to legitimate the establishment of a traditional community justice approach have focused primarily on three issues: (1) dislodging an entrenched culture of impunity; (2) responding to the prison crisis; and (3) providing opportunities for all persons to participate in the judicial process. A tone of resignation underscores many of the attempts to justify Gacaca; it is understood as a measure of last resort, necessitated by what one observer notes is the “impossibility of justice” in post-genocide Rwanda. At the same time, there are signs of cautious optimism among Rwandans who, in general, have expressed support for the alternative system.

[2] Almost a decade after the most acute period of Rwanda’s genocide, the Gacaca trials represent an attempt to construct a moral, political, social, and legal framework capable of overcoming the divisions of the past and the present. The trials, themselves, are not a panacea; however, by exploring the contours of the moral universe in which the genocide took place this article seeks to demonstrate that any hope for a viable, integrated Rwandan society depends significantly on local communities’ experience of justice as mediated through the Gacaca trials.

[3] (By focusing on Gacaca first, a claim is being asserted that local community relationships must be reconciled before international human rights discourse can be authentically engaged. That is, the mechanisms of human rights discourse, including the charters, covenants, treaties, and international law, cannot find a foothold until the ground of Rwandan society has been stabilized. Human rights discourse may function as an external frame of reference, but it will remain external until Rwanda establishes itself as a political state capable of following through on its commitments as a signatory to various international covenants, etc.)

[4] The fundamental task for Rwandans is to establish a sense of community. The enormity of this task against the background of genocide, oppression, and dehumanization is paralyzing. What kind of internal resources can Rwandans draw upon to establish a sense of community that is resilient to the tremendous external pressures of the global economy, ecological resource scarcity, and regional instability? What kind of resources can be planted and grown so that eventually their root systems cannot simply be excavated by regional and ethnic animosity?

[5] The Gacaca trials as a community practice may help Rwandans articulate the necessary pre-requisites for living together into the future. The potential for full participation in these trials suggests that the contours of life together will emerge from moral resources and value systems community members have direct access to such as traditional spiritual beliefs and practices as well as Christianity. Therefore, part of the task of establishing a sense of community will be to deconstruct the religio-cultural myths that have served to reinforce and legitimate divisions within Rwandan society. But an equally important part of the task will be to construct institutions within communities that allow Rwandans to participate fully in the conversation about their shared future. Gacaca can be a powerful tool with regards to both the deconstructive and constructive moments.

II. Historical Background

[6] Though relatively small compared to the scale of the tragedy, a body of literature has been developed over the past decade attempting to understand the Rwandan genocide. A significant portion of this literature is undertaken by outside observers, perhaps in an exercise of repentance for their prior ignorance of, and unwillingness to act on, the structural problems that plagued Rwanda. The scope of this article does not permit a comprehensive review of the diverse theories employed, which emphasize to varying degrees the role of development aid, ecological resource scarcity, colonial legacies, neo-colonial policies, religio-cultural ideologies, ethnic essentialisms, and structural violence endemic to Rwanda society. Instead, the analysis below seeks to uncover the contours of an entrenched socio-ethical framework that has been legitimated by these diverse theories. This socio-ethical framework takes as its starting point notions of conflict, subordination, and brokenness. Gacaca’s framework of reconciliation and restorative justice offers an alternative to these primary categories of meaning.

-Isms: Ethnic, Regional, and Class?

[7] Genocide has been the “convenient” descriptor applied to the horrors unleashed between the downing of President Juvenal Habyarimana’s plane on April 6, 1994 and the establishment of a new government in Kigali on July 19. It is convenient because it draws on the popular perception of ethnicity as the root of social conflict in Rwanda. But it is reductionist to claim that the incomprehensible carnage can be explained merely in terms of one ethnic group’s attempt to systematically exterminate another. There are several factors, which preclude this reductionist move and may suggest alternative possibilities for building relationships in the process of reconciliation.

[8] Genocide breaks down almost immediately as an adequate descriptor when the events immediately following Habyarimana’s plane crash are analyzed. Within hours of his crash extremist Hutu political groups known as the “Power faction” began executing political opposition leaders including Tutsi and moderate Hutu. (Ironically, this power faction had emerged in the early 1990s as a result of an externally motivated push towards multi-partyism and democracy.)[1] Comprised primarily of Hutu elites (known as the akazu) and associated with Habyarmana’s clan from the northern region, the “Power faction” within the ruling party Mouvement Revolutionairre National pour le Developpement (MRND) as well as new extremist Hutu parties such as the Commite de Defense de la Revolution (CDR) made use of armed militia groups (interahamwe and impuzamugambi) and Hutu within the national army (FAR-Forces Armees Rwandaises) to carry out a phased extermination of all those opposed to their political agenda.

[9] An analysis of genocide as a reductionist descriptor is in no way meant to trivialize the explicit use of anti-Tutsi rhetoric and the history of violence against Tutsi, which dominated Rwanda from independence until 1994. But it is important to understand that it was genocide AND something more. Indeed that something more, namely a political agenda protective of a particular Hutu elite, seized on the entrenched divisions within society.[2] (The importance of this “something more” will become clearer below when the possibilities for reconciliation are explored.)

[10] The interim government led by Jean Kambanda, set up within days of Habyarimana’s death, became Rwanda’s first ethnically homogeneous government. It included no Tutsi and in the successive phases of the genocide it replaced local government officials, including moderate Hutu, with those sympathetic to its agenda. Researcher Peter Uvin identifies this massive shift in local leadership as the primary reason for the decentralization of the genocidaires:

“The violence started in Kigali and was largely executed by the presidential guards, the militia, and the army. Its spread to the rest of the country took weeks and did not happen spontaneously: the large majority of the provincial governors, communal burgomasters, and ordinary citizens did not join in the carnage for weeks. The so-called interim-government replaced those civil servants by new extremist ones, and flew in the militia from the capital. It was only then that the violence spread to the rest of the country.”[3]
[11] Recognition of this calculated, step-by-step process provides strong support to the argument that the genocide was pre-meditated, but it also exposes the genocide leaders’ fomenting of ethnic hatred as a political strategy. In the midst of the genocide this nuanced distinction was not possible, but in post-genocide Rwanda its recognition is critical to any attempts at reconciliation. It does not excuse the thousands who participated in the violence, but it may illumine distinctions between those explicitly responsible for stirring up ethnic hatred and those who found themselves participating in the everyday violence of neighbor against neighbor. Reconciliation may not be possible for the former, but it may be for the latter.[4]

[12] As has been hinted at above, the genocide did not emerge out of a vacuum. Attempts to explain the genocide have often emphasized particular trajectories within Rwandan history, highlighting the social revolution of the 1960s, which inverted the Tutsi-Hutu political and ideological power structures. Two explicit instruments of the ideological inversion, or the rise of a Bahutu consciousness, were the Hutu Manifesto of 1957 and the CDR’s infamous “Ten Commandments of the Hutu” published in 1990 at the outset of the civil war.[5]

[13] Political inversions were witnessed not only in the formal political sphere,[6] but also in the leadership of the Roman Catholic Church and its influential educational institutions.

[14] Unfortunately, most analyses fail to distinguish between the Hutu and Tutsi as ethnic categories and Hutu and Tutsi as social constructs, which have been exploited for political purposes. The development of Hutu and Tutsi as distinct ethnic groups involves a complicated history and includes many extra-Rwandan actors, i.e., German and Belgium colonial administrators as well as Roman Catholic missionaries. Pre-colonial history is ambiguous with regards to the question of ethnicity, revealing instead the socio-economic relationship between the Tutsi cattle-herders and the Hutu agriculturalists. Creation myths describe the three peoples which constitute Rwanda: Tutsi, Hutu, and Twa, and legitimate a static social order.[7] But economic and political analysis of pre-colonial relationships suggests that there may have been some mobility between the groups, i.e., a Hutu could become a Tutsi if he attained enough cattle or prestige, and similarly a Tutsi could become a Hutu if he became economically dependent, etc. The frequency of this mobility is debatable, but it cautions one against essentialisms based on ethnic differences.[8] Anthropological and linguistic evidence suggest that the Tutsi, Hutu, and Twa come from distinctive biological and linguistic trajectories. But the importance of the distinction between the groups cannot be understood merely in terms of this evidence. Instead, the distinction becomes important only when understood in its various manifestations throughout Rwanda’s socio-political history. Two examples serve to illustrate this point, both of which take place within the context of the colonial encounter, but draw on existing social class relations as interpreted by outsiders.

[15] The first is the Hamitic myth propagated by early missionaries and colonizers. Consistent with the prevailing Social Darwinism of 19th century Europe, the German colonizers drew the conclusion from the success of the existing Tutsi monarchy that Tutsi were a superior people to the “common African.” To support this claim, they invoked the “Hamitic myth” which identified the Tutsi with peoples from Egypt and Abyssinia, cultures with a rich (and “civilized”) heritage. The myth served, as one observer notes, to inflate the Tutsi cultural ego while at the same intensifying a Hutu inferiority complex.[9] The social revolution and Hutu consciousness can be understood as an anecdote for years of denigration by Tutsi “masters.”

[16] The second, and perhaps the most directly related to the procedural success of the genocide, was the establishment of ethnic identity cards. This process, initiated by the Belgian colonizers during the census of 1933-34, rigidified sub-national ethnic identities for all Rwandans. But the primary distinguishing characteristic of ethnicity was economic: persons with less than ten cows were classified as Hutu. Furthermore, one’s ethnicity as established during the census became the artificial starting point for future generation’s ethnic identity. Passed patrilineally, children inherited their ethnicity solely from their father.[10]

[17] This system adds a dimension to the Hutu-Tutsi relationship that cannot simply be explained in terms of essentialist ethnic terms. Functionally, however, this system provided the major political and legal cornerstone on which twentieth-century relationships between Tutsi and Hutu developed. In effect the Tutsi-inspired creation myths and folktales had been given legal and political legitimacy by an external force.[11]

[18] The identity cards remained a powerful weapon for the ruling group even after the social revolution and independence. In fact, it was this system which expedited the compilation of lists of Tutsi to be exterminated by the genocidaires.[12] The identity cards were finally abolished after the new government came to power in July, 1994.

[19] As mentioned above, the social revolution and independence effected an inversion, but they utilized the ideological and material infrastructure of the previous Tutsi and colonial regimes. Hutu bishops replaced Tutsi bishops; Hutu officers replaced Tutsi officers; Hutu cabinet members, etc. replaced Tutsi cabinet members. This was no small task since in 1959, 43 out of 45 chiefs and 549 of 559 sub-chiefs were Tutsi.[13] But aided by the Belgians reversal of their replacement policy in 1960 (a gamble of political desperation on the part of the colonial administrators who anticipated the negative consequences of their pro-Tutsi policies in the impending move towards independence and majority Hutu rule) and landslide election victories following a revolt overthrowing the Tutsi king, Hutu held all but 19 of the 229 mayoral positions.[14] Philip Gourevitch summarized this phenomenon well in his account of the genocide: “[T]he political struggle in Rwanda was never really a quest for equality; the issue was only who would dominate the ethnically bipolar state.”[15] Far from tangential to the events of the 1994 genocide, this historical background set both the ideological and political stage for the Rwandan civil war and the genocide that followed.

Social Revolution and Independence

[20] Until 1960, Rwandan history had been written from the perspective of the Tutsi, even when the Tutsi had become pawns for colonial powers. What changes would take place when the tables were turned? How would the socially and politically legitimated myths of differentiation serve their new masters?

[21] Answers to these questions became immediately apparent. Buoyed by the new Hutu consciousness-as expressed in the Hutu Manifesto-Hutu political leaders exploited the Hamitic and creation myths for their own purposes, identifying the Tutsi as foreigners who had usurped the Hutu’s rightful inheritance of the land. A quota system, based on the proportion of Tutsi to the total population, was adopted which limited Tutsi access to higher education and state jobs; the tide of discrimination was reversed resulting in a virtual exclusion of Tutsi from the army, diplomatic corps, and the government.[16] Though the degree to which these policies was actualized is debatable, Uvin argues “the quota systems, combined with the ethnic Ids, served more to keep the distinctions alive (Chretien talks about maintaining the ‘stranger-ness’ of Tutsi) and to allow for social control by the state, than for actual discrimination.”[17]

[22] He further argues that the distinctions were politically convenient in times of crisis, but that discrimination fell out largely along regional divisions. To this end, Hutu in the north were discriminated against during the post-independence regime of Gregoire Kayibanda (1962-73) and Hutu in the south fell out of favor when Habyarimana came to power.[18] Indeed, it is a plausible argument that it was the regional discrimination that fueled Habyarimana’s revolution. While he maintained many of the policies of discrimination against Tutsi, his efforts to eliminate political opposition in the early years of his regime support the argument for a greater emphasis on regionalism. It was during this period that the MRND-Habyarimana’s party-became the sole constitutionally allowed political party.

[23] The authoritarian nature of Habyarimana’s government mirrored many of the characteristics of the previous Tutsi monarchs, but it drew its legitimacy from two sources: the social revolution and the development ideology. The development ideology gave the state enormous power as the instrument responsible for “developing” the Hutu masses, which had been “underdeveloped” throughout the Tutsi monarchies and colonial rule. The state, under Habyarimana, gained expansive powers in all aspects of life, including the legal system, which, as Uvin notes, was “independent only in name and impunity was the norm.”[19] This kind of centralized power could not be realistically challenged from within, especially given the powerful force of ethnic rhetoric to demonize any opposition as pro-Tutsi, and thus anti-Hutu. Organized resistance would have to come from outside Rwanda’s borders. And, not surprisingly, it manifest itself in the very population that had become refugees during the initial persecutions of Tutsi in the 1960s.

The Refugee Crisis

[24] The refugee crisis, which has defined the Great Lakes region of Africa for the past half-century and continues to act as an obstacle to stability, has its roots in the years immediately following independence. Determined to eradicate political opposition, Kayibanda’s policies had forced approximately 130,000 Tutsi to flee Rwanda’s borders. Armed attempts to regain entrance were met with violent reprisals against Tutsi civilians still living in Rwanda and with a closed door policy predicated on arguments about population density.[20] According to Prunier, one failed attempt to regain entrance was used as a pretext by the Hutu government to “launch a massive wave of repression in which an estimated 10,000 Tutsi were slaughtered between 1963 and January 1964. All surviving Tutsi politicians still living in Rwanda were executed.”[21] A decade later, a second wave of refugees would be created as Kayibanda executed revenge killings and persecution for the deaths of several thousand Burundi Hutu at the hands of the Tutsi-controlled government of Burundi.[22]

[25] The continual ebb and flow of refugees across the borders has not only succeeded in destabilizing relationships with neighboring states, but it has effected an erosion of the concept of community. Refugees who succeed in returning home often find their homes destroyed or occupied by others who had rushed in to fill them in their absence. Internal displacement further complicates viable concepts of community. The question of home becomes increasingly elusive as refugees move from camp to camp, country to country, and region to region. This presents a tremendous challenge to any processes of reconciliation, including the Gacaca trials, which depend largely on community members’ willingness to understand themselves as interdependent. The fracturing of kinship systems and communal relations engendered by the dynamic flow of internal and external displacement is further exacerbated by the ecological and economic crises that make rural living unsustainable.[23] Reconstructed notions of community will have to be built upon something other than traditional kinship systems. It is this conclusion that speaks directly to the radical erosion of any legitimate moral framework to which Rwandan’s can appeal. Immersed in a socio-ethical worldview predicated for generations on alienation and divisiveness, Rwandans encounter each other in local communities not only as “other,” but as stranger, squatter, and alien.

III. Gacaca: Justice on the Grass

[26] The Tutsi-dominated government, which came to power in July 1994, sought immediately-at least rhetorically-to address the culture of impunity that had driven the cycle of political and ethnic violence.[24]

[27] With significant material and logistical help from the international community, Rwanda began to reconstruct its judicial system. By 1996 the government had adopted legislation that would be the cornerstone of its approach to post-genocide reconciliation. Article 2 of the Organic Law on the Organization of Prosecutions for Offenses Constituting Genocide or Crimes Against Humanity Committed Since October 1, 1990 established four categories of genocide suspects: Category I suspects included the leaders and planners of the genocide, murderers who demonstrated excessive malice, and sex offenders involved in rape or sexual torture; Category II consisted of “perpetrators or accomplices in homicide”; Category III comprised “accomplices in crimes without intention to kill”; and Category IV concerned crimes against property.[25] The institution of the Gacaca jurisdictional system several years later retained these four categories, but included greater flexibility in the punitive phase.[26]

[28] The use of Gacaca courts for prosecuting genocide suspects, though only recently enacted as legislation, has been part of the conversation from at least mid-1997. Confronted by the enormity of the judicial task and the limits of the options available for accomplishing that task, Rwandan officials, scholars, and others began seriously considering the possibility of modernizing the traditional form of Rwandan community-based conflict resolution known as Gacaca. In 2000, after garnering input from government officials, civil society, and the international donor community, the National Assembly passed legislation establishing the “modernized Gacaca” system.

[29] The system is complex in large part because it is attempting to calibrate a local practice across multiple localities. The structure of the system is consistent with the larger political organization of Rwanda: provinces, districts, sectors, and cells. The jurisdiction of these four levels roughly corresponds with the four categories of suspects, with Category I being reserved for the formal domestic or international judicial instruments. Cells operate at the local community level and are mainly responsible for categorizing the accused, listing damages, and judging Category IV crimes. Sectors represent the next level and are responsible for judging Category III crimes as well as appeals for Category IV. Similarly, the district level has appellate jurisdiction for Category III crimes in addition to its primary duty of prosecuting Category II suspects. Finally, the province level is exclusively an appeals court for Category II crimes.[27]

[30] The trial phase involves the entire community in which the alleged crime took place. Members of the community are elected to be part of a nineteen-member bench, functioning in a similar capacity as the traditional inyangamugayo, or community elders respected for their integrity. Approximately 255,000 modern inyangamugayo were elected in 2001 and were provided legal training throughout the following year. Each community elected its own inyangamugayo. According to the Ministry of Justice, the community present in the colline[28] during the genocide function as “witness, judge, and plaintiff.”[29]

[31] As noted above, one of the significant departures Gacaca makes from the formal system has to do with sentencing. Both systems include reduced sentences for confessions in all four categories, but Gacaca adds the possibility of sentencing in the form of community service. Generally applicable to half of the already reduced sentence, community service is a viable alternative for those who seek public forgiveness. For example, under the formal system a person found guilty of a Category II crime might be sentenced to life in prison. If the person confesses prior to indictment or in the early phases of the trial, his/her prison sentence may be reduced to as little as seven years. Under the Gacaca system the confession/reduction structure is maintained, but it introduces an intentionally restorative move by commuting half of the sentence into community service.

[32] This move underscores two of the primary functions of the Gacaca initiative: to alleviate the overwhelming strain on the prison system and to promote reconciliation. The two functions cannot be conceived independently since one of the obstacles to reconciliation remains the conditions in the prisons as well as the conditions that engendered the massive sweep of arrests and indictments immediately following the genocide (i.e., arbitrary arrests, lack of procedural justice, involvement of non-authorized military personnel in incarceration). The conditions in the prison have resulted in new accusations of human rights violations and serve to further polarize the victims and the extended community of the alleged perpetrators.While customary Gacaca does not address prison sentencing, the modern version can be seen as upholding the spirit of reconciliation Gacaca is intended to promote. According to Stef Vandeginste the traditional sentence had a double objective: “it should be a sanction that allows the person concerned to understand better the gravity of the damage caused, but atthe same time it should allow the same person to reintegrate into the local community.”[30] But is this spirit of reconciliation enough to overcome the seemingly vast abyss which separates the contexts in which customary and contemporary Gacaca operate? Is it, in itself, enough to transform a local, unregulated mechanism of conflict resolution into a codified framework for national reconciliation?

[33] In the immediate aftermath of the genocide the government’s prioritizing of retributive justice suggested that this kind of transformation was not possible. The pressure to end the culture of impunity resulted in grandiose claims about the necessity of retributive justice for the purpose of national reconciliation. According to a 1996 sociological inquiry by the Institut de Recherche Scientifique et Technologique this rhetoric was not lost on the population. Vandeginste summarizes their findings as follows:

… people generally felt that genocide should not be dealt with by the Gacaca but by the highest political authority, that is, the state (which, in a system of separation of powers, should be understood as the judiciary). Once guilt is established, it was felt that the killer (or one of his family) should also be killed. This would enable forgetting and forgiveness and lead to a reconciliation of the families involved.[31]
[34] Drawing on more recent surveys, Uvin suggests that the Rwandan population-Hutu and Tutsi-prefer the Gacaca system: “While they do fear its potential excesses or abuses, they also judge that under current conditions the Gacaca system is superior to the continuation of the current formal justice practice.”[32] Reasons for this change in public perception may be numerous, including the shift in government strategy since 1997 and weariness with the inefficiency of the formal justice system. The latter can be supported by the tremendous disconnect many victims experience in relation to both the national and international instruments of justice.[33] Though many Rwandans are unclear as to their precise role in the Gacaca trials, there is recognition (or, perhaps, cautious optimism) that their role will be greater in the Gacaca system than in the current one. This recognition, or optimism, demonstrates that despite its foibles, the state-mandated Gacaca system presents justice in a more accessible medium and that accessibility to structures of justice plays more than a peripheral role in how individuals and communities evaluate the possibilities for reconciliation within a given system.

IV. Analysis of Gacaca as a Viable Resource for Reconciliation

[35] Customary and contemporary Gacaca differ in several important ways. Critics, both sympathetic and cynical, highlight the distinctions as a caution against a naïve and nostalgic appropriation of the past. Citing the artificiality of Gacaca’s contemporary form, particularly the state’s role in its creation and enforcement, reports by groups like Amnesty International raise questions about whether the differences between its customary and contemporary forms “negate the anticipated results: justice, the uncovering of truth and national reconciliation.”[34] Amnesty’s critique hinges on a conception of reconciliation that necessitates a personal interaction between the perpetrator and the victim. In its customary form Gacaca was capable of facilitating this encounter. The community shared a moral framework in which wholeness was privileged. Violations of another person’s property, body, etc. created a fracture in the community that needed to be restored. The starting point for reflection was wholeness; the correlate justice paradigm was restorative. Cooperation was understood as the primary pattern of relationship not because it sounded nice, but because it worked.

[36] But what happens when the starting point for reflection is one of brokeness, alienation, and fracture? Is it possible to speak of a coherent moral framework, let alone a notion of universal human rights? Does reconciliation in this context resonate with any substantive meaning?

[37] Answers to these questions are speculative in the early stages of this radical experiment. Nonetheless, the various critiques offered by human rights organizations, legal experts, and other interested researchers provide a starting point for evaluating the potential viability of the Gacaca system. A closer examination of the critiques, which run throughout much of the discourse, provides insight into the inevitable tension between the external demands of the international human rights community and the internal demands of the communities affected by the genocide.

[38] The most prominent criticism is that Gacaca compromises minimum fair trial standards as protected by state and international laws. But much of the initial criticism is directed at the human rights environment that gave rise to the prison situation. In particular it emphasizes the role of the state in fostering “an environment in which human rights violations are endemic.”[35] For instance, the hyper-correction for the culture of impunity eroded the fundamental presumption of innocence that underscores many Western and international articulations of human rights. This, in turn, resulted in many of the arbitrary arrests that have contributed significantly to the overcrowded prison conditions. Compounded by the lack of documentation in many of the cases, it would seem that assurance of minimum fair trial standards was jeopardized from the outset. This does not excuse the continued neglect of these standards, however, it places the criticism within the larger breakdown of justice.

[39] By functioning as a mandate of the state, Gacaca may be perceived as yet another extension of the legacy of the state’s pervasive presence in Rwandan society. An inevitable paradox arose when the state inserted itself into Gacaca. Indeed, state-mandated Gacaca exists on some levels as an oxymoron. The paradox is complicated by the continued complicity of the state in human rights violations, especially its reluctance to pursue all violators including members of its armed forces. Yet the state is seen as the check against unfair applications of justice that result when local communities function as sovereign jurisdictions. The criticisms, then, reflect a kind of circularity since any critique must simultaneously affirm the state’s role in upholding codified standards while calling into question its ability to do so. In both moments the success of the Gacaca in promoting community reconciliation is dependent upon the reforms of the state. It is difficult to get around this dependence upon the state, especially given the authority it has possessed in the past. Civil society institutions are a relatively new voice in Rwandan society. It will take time for these institutions to establish themselves as viable contributors to a culture of reconciliation in Rwanda. It will not only take time, but considerable trust-building given the degree to which many of the civil society institutions have been directly linked to past regimes (i.e., the Roman Catholic Church).

[40] The paradox may not be immediately resolvable given the current conditions in Rwanda. But my argument for a modest role for Gacaca takes seriously the indirect impact of the project often overlooked in critiques of its formal politico-legal viability. Though established as a top-down state mandate, the modern Gacaca system is inherently a grassroots movement. The more than 9,000 cell-level courts and 255,000 elected judges reflect a radical decentralization of power that cannot be completely controlled by the state. This is both cause for concern and hope. I err on the side of hope for the following reason: this shift to decentralized power is taking place in an era of increased access to media as well as in a politico-cultural context that has explicitly expressed to its own citizens and the international community its goal of reconciliation. There is a certain synergy of accountability in that combination that may prove critical for Rwanda’s transition to an integrated society which is both just and sustainable. Viewed through a particular lens of justice, there are many holes in the Gacaca system. For example, there does not exist protection against double jeopardy. Instead, if new evidence arises an acquitted person can be tried again. But these criticisms suggest an unfair burden on the Gacaca system. Gacaca, in and of itself-nor any other judicial alternative-is not capable of creating and sustaining a comprehensive and cohesive system of perfect justice. What it may be capable of is empowering a disenfranchised citizenry and offering an institutional space in which alienated individuals and groups can recognize a degree of interdependence. These are, if not prerequisites, simultaneous demands of any transitional justice enterprise.

[41] Perhaps this is the key recognition: Gacaca is a part of a transitional justice enterprise. As such its primary goal should be understood as establishing a culture committed to reconciliation, and not necessarily achieving reconciliation. Despite many of the criticisms, human rights groups and others have remained cautiously optimistic about Gacaca. Whether out of desperation or sincere belief that Gacaca represents a viable building block for reconciliation and the construction of a society respectful of human rights, significant energy is being invested in this alternative. Peter Uvin’s words poignantly illumine the challenge: “Gacaca is a worthy gamble, but a gamble nonetheless. It is simultaneously one of the best and one of the most dangerous opportunities for justice and reconciliation in Rwanda. But in a country like Rwanda there are no easy, cheap or clean solutions.”[36]

V. Rooting, Reforming, and Restoring

[42] The complexity of the task facing Rwanda demands a response that draws on the resources of all spheres of society. Thus far, attention has been focused on the formal avenues for social change, in large part because this reflects the critical literature available. Amnesty International’s 51-page critical evaluation of Gacaca is indicative of this trend. The majority of its recommendations focus on the role the state can play, while only a few, vague recommendations are made for the role civil society might play. Furthermore, the relative silence of the religious community, especially that of the Vatican, has given the impression that the state is the primary, or at least a priori, locus for reform. This kind of reductionism distorts the complex interaction of spheres in Rwandan society, perpetuating the abdication of responsibility on the part of religious communities and other institutions capable of generating social capital.

[43] The conspicuous absence of any in-depth analysis of the potential contribution of religious communities may be the product of several factors, two of which are explored below: (1) the complicated history of church-state relations in Rwanda; (2) a general perception within the international community, particularly among political analysts and human rights activists, that religion generates rather than resolves conflict.

[44] In the hopes of re-casting these two factors as necessary for the success of Gacaca as well as for the larger project of national reconciliation, I would like to place them within a particular methodological framework that emphasizes rooting, reforming, and restoring.Rooting may be understood as: (1) empowering local communities to be the primary space in which the integrity of theories and policies is tested; (2) fostering direct and meaningful communication between local community members and various “outsiders” including: researchers, policy makers, and organizers; (3) investing in the unique strengths of local communities; and (4) encouraging creative problem-solving based on an honest assessment of the community’s strengths and needs in relation to the strengths and needs of nearby (regional) communities. This concept is consistent with attempts to develop structures of justice which more accurately embody the religio-cultural values of a community. Gacaca is a tangible example of this kind of structure.[37]

[45] Juxtaposing the example of Gacaca and the ICTR suggests a paradigm of complementarity necessitated by the pervasive nature of the atrocities. The UN tribunals in dealing with the suspected leaders cannot begin to address the devastating fragmentation of relationships experienced among and between community members. Retributive justice understood through the mechanisms of international justice may only serve to assuage the remorse of an international community apparently stunned by its previous complacency. This may be important; it may provoke a deeper analysis of the narcissism rampant in geo-political gerrymandering which draws and re-draws lines in the sand according to the economic and political needs of the powerful. However, without the complement of Gacaca or another community-based approach, the process will be stunted as reactionary rather than reforming. Restoration of viable relationships will be inconceivable because justice will remain abstracted for those whose need for it is most urgent, such as Hutu and Tutsi coexisting tenuously in the same village, each aware of the other’s complicity in the horror.

[46] The most immediate resources available to the Hutu and Tutsi members of a community are not the United Nations Declaration of Human Rights. The most immediate resources are the beliefs and practices to which they turn for meaning even when their fractured world defies intelligibility. Within the Rwandan context these beliefs and practices are not monolithic, but the institution of the Gacaca community trials can be seen on one level as tacit acknowledgement that Gacaca embodies certain beliefs integral to Hutu and Tutsi conceptions of the human and the human relationship to society. In this way, Gacaca has become a legitimate source despite criticisms of its practical applicability. As a legitimate source it enters into the negotiation with claims about universal human rights, and may function as an agent of reform.[38]

[47] Scholars such as Hilary Charlesworth prioritize human rights as the reforming agent, while at the same time attempting to validate some space in which religious traditions can provide a critical hermeneutic for evaluating human rights laws. Noting an emphasis on duties and a breadth of concern beyond the civil and political (e.g., social, economic, cultural), Charlesworth acquiesces that “religious traditions have something to offer human rights law.”[39] The prevailing tone is one of acquiescence, not one of mutual respect. And as long as that tone is detectable, traditions which offer alternative religious or secular conceptions of the human and of the world will have to continually defend their right to not only be at the table, but to offer a constructive voice to the conversation.

[48] A working definition of reforming-the second component in the framework for authentic justice-can be distilled from the above discussion: (1) creating space within existing structures, institutions, relationships, etc. for possibilities beyond the status quo; (2) linking criticism of current practices with viable alternatives (coextensive); (3) identifying, and responding to, the negative and positive impact of self-interest on all relationships; (4) continually renegotiating relationship networks to more accurately reflect the injustices being experienced and the human rights being pursued.

[49] Finally, a commitment to restoring relationships-the framework’s third component-demands imagination, compassion, and integrity within the negotiation of particular and universal claims about human rights. Restoration of relationships is not teleological in an ultimate sense because it is processive, yet it animates the dialogue with hope for a new matrix of relationships in which deeper and broader understandings of the complex interdependence of universal human rights and religio-cultural identities can germinate. This can never be the by-product solely of a state-mandated justice system, no matter what form it takes. The system may be a vehicle for compassion, practices of integrity, and even imaginative reconstructions or reclamations of relationships; but it will always be animated by people who embody these virtues. It will be animated by the dynamic and synergetic relationship of the various components of communal life which give individuals identities. In a Rwandan society-defined by fragmentation, mobility, eroding insularity, and plurality-individual and communal identities will always be a matrix of diverse values gleaned from multiple sources: family traditions, religious commitments, experiences of injustice, interpretations of the past, dynamic religious practices, etc.

[50] This may be the greatest hope for a sustainable future in which Hutu and Tutsi can peacefully co-exist on the same hill. From this perspective ethnicity becomes a part, and not the whole, of one’s identity. This has always been the case for Rwandans, though its history often masks this recognition. This side of the genocide, Rwandans cannot afford not to recognize, affirm, and assert the multiplicity of factors that distinguish them, one from another. Gacaca may provide the legal space in which this recognition can take place. But it will depend heavily on the ability of a cadre of other social structures to animate the vision of reconciliation to which Gacaca points. This article is, in a sense, a call to Rwandans to turn towards the sources in their midst which are capable of animating and sustaining a vision of reconciliation.

[51] It is a call to revoke the legitimacy of some of these sources and to lift up others that have been too-long overlooked. To this end, I turn to the potential of religion as a constructive source of value in post-genocide Rwanda.

VI. Religion as Resource[40]

[52] Some scholars have explored the powerful position of religion in Rwanda’s history, though it has tended to focus on Roman Catholicism and its role as a state church. The seminal text, Church and Revolution in Rwanda, written in the 1970s attempted to understand the growth of the Catholic church against the backdrop of a stratified society.[41] With a conclusion that now appears tragically ironic given the disturbing complicity of many Catholic priests, nuns, and lay persons in the genocide, Linden states: “Its [the Church’s] task was now to transcend the regionalism and ethnic conflict that had scarred Rwandan history.”[42] Saskia Van Hoyweghen, writing this side of the genocide, offers a more pessimistic assessment of the Catholic church’s potential for being an agent of change and reconciliation. Van Hoyweghen, drawing on much of Linden’s early research regarding the interdependence of Church and State in Rwanda, claims that it was the very interdependence that has rendered it impotent in the modern crisis: “The church was, like the modern state, introduced in Rwanda during the colonial period, since when both institutions have been used by indigenous groups as channels to power, prestige, and wealth.”[43] The interpenetration of the Church and society has resulted in a Church that mirrors the fragmentation of society. Van Hoyweghen lambastes scholars who have “for too long been blinded by the extensive power of the Church,” ignoring the “patchwork of so many different elements” it has become.[44] Van Hoyweghen’s conclusion sounds like a death knoll for the Catholic Church in Rwanda: “It is too discredited to retake the initiative and its future will depend largely on the outcome of the current political crisis, which is far from solved.”[45]

[53] This assessment is sobering and may cause Rwandans to reconsider turning towards the sources in their midst to buoy the vision of reconciliation. But Van Hoyweghen is guilty of the same narrowness of vision he attributes to other scholars. He is unable to see that the plurality of “vernacular Christianity” may very well be its hope. The vision of reconciliation which the Christian tradition, at its best, expresses may only be accessible when the church, like the state, is de-centered. The passive stance Van Hoyweghen recommends acquiesces to the notion that the state is the primary locus for reform. But, as noted above, this kind of reductionism is both disingenuous and dangerous-from the perspective of both human rights discourse and the communities affected by the genocide.

[54] A true turn towards the sources in one’s midst involves a continual critical re-evaluation of those sources, recognizing the way in which political realities often distort visions towards self-interest. My argument here should not be seen as an apologia for the Catholic Church, Christianity, or any other particularized manifestation of a moral value system. Instead, it should be recognized as a step towards reconciliation that must find a foothold in already extant institutions, including the plurality of religious practices in Rwanda. This is necessary because these institutions have already played a role in shaping the identities of Hutu and Tutsi as moral agents within Rwandan society. A completely external framework, even one as noble as universal human rights, cannot exist independent of this foothold. As religion and human rights scholar, Abdullah An-Na’im correctly points out:

[I]t is reasonable to assume that the prospects for practical implementation of a given regime of human rights as a normative system are related to the degree of its legitimacy in the context of the culture(s) where it is supposed to be interpreted and implemented in practice. Otherwise, how can a people be expected to accept and effectively implement a system that they believe to be inconsistent with their own cultural values and institutions?[46]

There are many who do not share Van Hoyweghen’s nihilist conclusion. Indeed, there are many church leaders throughout Africa who recognize in the current moment the vital role the church can play in effecting social change. These leaders are driven by a passion for justice they find rooted in their own sacred texts and traditions. There is hope in this. Though it is a cautious hope, continually aware of how quickly value systems can be co-opted by those in power. The words of Peter Lwaminda, Secretary-General of the Association of Member Episcopal Conferences in Eastern Africa (AMECEA) seem a fitting conclusion:

Today, all of Africa is in flux. Change is all around us, some of it for the good and much of it, unfortunately, for the worse. Caught up in this fresh wind of change, Africa in the 1990s is experiencing a “second independence.” This move towards multiparty competition, respect for a free press and the hope of protection and promotion of human rights, calls for “a new moral culture of responsibility and a new political and economic culture of accountability and transparency.” … the churches have now, in spite of an initial timidity and hesitation, powerfully and courageously involved themselves in the political and social interactions of the continent.[47]
This kind of commitment challenges the international human rights community to take seriously the constructive role religious communities and institutions can play in restoring justice in transitional societies. With respect for the morally formative tradition of proverbial speech in many African societies, I echo Lwaminda’s assessment: “The pangs of childbirth are much better than the stability of the graveyard.”[48]

[1] The rise of moderate opposition parties within Rwanda comprised a significant threat to the Habyarimana regime, particularly when they joined together to promote a power-sharing government which included the Tutsi-dominated Rwandan Patriotic Front. Habyarimana’s signing of the Arusha Peace Accords in 1993, designed to effectively end the civil war between the RPF and the FAR and initiate a power-sharing government, though never fully realized, was seen as a betrayal by many Hutu power brokers who had the most to lose as a result of the accords. Against this background, the rallying cry of Hutu power raised in the aftermath of Habyarimana’s plane crash reflects opportunism on the part of Hutu extremists rather than a genuine solidarity with a Habyarimana regime increasingly seen as acquiescing to external and internal pressures for an integrated government.

[2] It is important to set the seemingly moderate moves of Habyarimana in his final two years against the background of his regime, which for years had fomented violence against Tutsi. The civil war with the RPF, which began in 1990, was construed in almost exclusively ethnic language. The arrest and violation of Tutsi civilians was justified throughout the civil war as protection against the return of the Tutsi monarchy: “From the beginning, frequent massacres of Tutsi were committed by the army, the presidential guards, and the new militia (Reijntjens 1994:117). Thousands of Tutsi were killed between 1990 and 1993, often by ‘mobs’ directed by local authorities, national politicians, and the police. … They successfully sought to spread ethnic fear throughout society; to organize, legitimize, and routinize the forces of violence and genocide; and to desensitize people to violence. Through actions and words, these processes contributed to the dehumanization of the Tutsi, and authorized and routinized the use of violence against them.” Peter Uvin, Development, Aid and Conflict: Reflections from the Case of Rwanda (Helsinki: UNU/WIDER, 1996), 32.

[3] Ibid., 32.

[4] The current legal instruments designed to deal with perpetrators of the genocide already reflect this distinction. The ICTR and the state judicial system are responsible for prosecuting Category I suspects as defined by the Organic Law. The Gacaca, on the other hand, are equipped to deal with perpetrators of homicide, theft, assault, property damage, and other crimes not categorized as a “crime against humanity.” See the discussion below for a more detailed analysis of the four categories. Given the marginalized status of women in Rwandan society, it is remarkable to note that rape has been classified as a crime against humanity and thus subject to Category I jurisdiction.

[5] The “Ten Commandments of the Hutu” was published by CDR member, Hasan Ngeze in Kangura, his monthly publication and included phrases such as: “a traitor is any Hutu who marries a Tutsi woman, (1)”; “the Hutu must stop feeling pity for the Tutsi, (8)”; “Every Hutu must know that a every Tutsi is dishonest in business. He aims only at the supremacy of his ethnicity, (4)”; and “The Hutu must be firm and vigilant in their enmity against their common Tutsi enemy, (9).” Paul J. Magnarella, “Comprehending Genocide: The Case of Rwanda,” Global Bioethics, v.13, no. 1-2 (March-June 2000), 34-35.

[6] Magnarella, 30.

[7] See Magnarella, 28 for two examples of Rwanda creation myths.

[8] J.J. Maquet, an anthropologist writing in the 1950s suggests that creation myths and folktales emphasized the essential differences between the three peoples, identifying the Tutsi as “intelligent (in the sense of political intrigues), apt to command, refined, courageous, and cruel,” the Hutu as “hard-working, not very clever, extrovert, irascible, unmannerly, obedient, physically strong,” and the Twa as “gluttonous, loyal to their Batutsi masters, lazy, courageous when hunting, lacking in restraint.” J.J. Maquet, “The Kingdom of God in Ruanda,” in African Worlds, ed. D. Forde (London: Oxford University Press, 1954), 185. asserts that all Banyarwanda peoples believed these qualities and the consequent social order to be innate, however he rightly recognizes that these myths and folktales conveniently reflect the Tutsi (ruling class at the time) point of view: “[I]t appears that the superior caste has been able to make other people see themselves in important respects as Batutsi see them.” Ibid., 185.

[9] Gerard Prunier, The Rwanda Crisis (London: Hurst and Co., 1997), 9.

[10] For a fuller history of the identity card system see Magnarella, 31.

[11] Legal and political dimensions of the ideological social ordering existed prior to colonization, particularly in laws dealing with crimes committed across groups, i.e., it was illegal for a Hutu to steal cattle from a Tutsi, but a Tutsi could expropriate cattle from a Hutu at will. Magnarella, 27 -8. Legitimation by a party external to the Rwandan social order reinforced and further entrenched collective conceptions of inferiority. As Gerard Prunier states: “In 1959 the red seal of blood put a final label of historical unavoidability on this mythological construction, which from then on became a real historical framework.” Gerard Prunier, The Rwanda Crisis: History of a Genocide (New York: Columbia Press, 1995), xiii.

[12] Uvin, Development, Aid and Conflict, 10.

[13] Magnarella, 30. This was in large part due to the Belgians initial replacement policy that intentionally substituted Tutsi leaders into positions previously occupied by Hutu.

[14] Ibid., 32.

[15] Philip Gourevitch, We Wish to Inform You that Tomorrow We Will Be Killed with Our Families (New York: Farrar Straus and Giroux, 1998), 58.

[16] Uvin, Development, Aid and Conflict, 10.

[17] Ibid.

[18] “Fell out of favor” is an unfortunate euphemism given the consequences many suffered as a result of this change in power. Members of Kayibanda’s regime, including Kayibanda himself, were killed by Habyarimana’s security forces.

[19] Uvin, Development, Aid and Conflict, 8.

[20] Magnarella, 32.

[21] Prunier, The Rwanda Crisis, 56

[22] Magnarella, 33.

[23] The scope of the paper does not allow for a critical analysis of the causes of these problems, but only to highlight the role of drought, soil-erosion, and the crash of the global coffee market as factors contributing to the mobility between regions as well as towards urban centers.

[24] Despite this rhetoric violence and impunity continued to predominate in the aftermath of the genocide. Human rights violations by the RPF/RPA have been a persistent target for human rights criticism and threaten to undermine the integrity of all levels of the post-genocide judicial response.

[25] Official Gazette of the Republic of Rwanda 40, no. 6, March 15, 2001.

[26] The ICTR exists, in many ways independent of the formal domestic and Gacaca systems, particularly with regards to fiscal agent and monitoring. Its domain is limited to Category I suspects, though its work does not exhaust this category. Rwanda’s formal judicial system as well as various other international mechanisms has been employed to prosecute other Category I suspects. The latter, though not frequently activated, includes the rights of other nations to employ a direct exercise of universal jurisdiction. Rwanda is a signatory to the 1948 Genocide Convention, but until recently had failed to attend to Article 5: “The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article 3.” qtd. in Stef Vandeginste, “Rwanda: Dealing with Genocide and Crimes against Humanity in the Context of Armed Conflict and Failed Political Transition,” Burying the Past: Making Peace and Doing Justice after Civil Conflict, ed. Nigel Biggar (Washington, D.C.: Georgetown University Press, 2001), 249; footnote 30.

[27] According to Uvin, Category II crimes constituted 80% of the cases in the traditional gacaca system. However, indications within the Amnesty report, “Gacaca: A Question of Justice,” suggest that gacaca was primarily concerned with things such as: land rights, property damage, marital disputes, inheritance rights, and other non-capital offenses. This discrepancy may illumine the differing degrees of optimism various interpreters express regarding the viability of gacaca to address the seriousness of genocide crimes.

[28] A colline is the local community as defined by its shared geographic spaces, often cases a distinct hill in Rwanda, “land of a thousand hills.”

[29] qtd. in “Gacaca courts in Rwanda,” Penal Reform International, 1 December 2003.

[30] Vandeginste, 239.

[31] Ibid., 239.

[32] Peter Uvin, Case Study: The Gacaca Tribunals in Rwanda,, 1 December 2003 p. 119.

[33] A U.S.-funded NGO, Internews, which has been one of the few media covering the ICTR in Arusha, has begun travelling around Rwanda to bring news of the ICTR hearings into local communities. Equipped with a video-smart van, Internews has shown footage of the hearings to informal groups of Rwandans. Internews then facilitates a follow-up discussion with those gathered around the van about issues related to the trials and national reconciliation. For most Rwandans this represents their first encounter with the workings of the ICTR.

[34] “Gacaca: A Question of Justice,” Rwanda, Amnesty International: December 2002 (AI Index: AFR 47/007/2002), 21.

[35] “Gacaca: A Question of Justice,” 44.

[36] Uvin, Case Study, 121.

[37] It is important to note that those working at the intersection of law and religion, such as Harold Berman, have established the historical roots of Western law in a specific trajectory of Christian tradition. Understanding the development of Western legal systems, and consequently human rights discourse, in terms of their relationship to a specific religious worldview–including the social and political theories predicated on, and mutually reinforcing of, Western religio-philosophical values and shared historical experiences– provokes a legitimate demand that the necessity of this relationship be acknowledged in non-Western societies. That is to say, as attempts are made to globalize human rights discourse, societies which do not privilege Western religious and legal narratives demand equal (perhaps even reparative) time and space in which to articulate their own history of the relationship between religiously-informed worldviews and the legal structures which have emerged from them. Without this part of the conversation, human rights discourse will continue to function as colonizing.

[38] This seemingly one-sided appraisal of Gacaca as a reforming agent for universal human rights claims does not suggest that Gacaca is not simultaneously reformed by its interaction with universal human rights claims. The process in its ideal form is one of mutuality. However, the mechanisms for articulating human rights critiques of community-based initiatives or other culturally-specific conceptions of justice are already in place and have established reputations which afford them a privileged position in the conversation. For example, Amnesty International and other human rights watchdogs maintain a powerbase and resources capable of exerting tremendous influence through reports critical of alternative initiatives such as Gacaca. Again, the value of these mechanisms is not being called into question, rather the necessary role that alternative articulations of human rights and the structures in which these alternatives are manifest is being emphasized as counter-balance.

[39] Hilary Charlesworth, “The Challenge of Human Rights Law for Religious Traditions,” Religion and International Law, eds., Mark Janis and Carolyn Evans (Martinus Nijhoff: Boston, N/A), 410.

[40] Due to the limited availability of sources dealing with other religious traditions and the predominance of Catholicism in the past century of Rwanda’s history, this section will focus primarily on the Roman Catholic Church. It should be noted, however, that my knowledge of the Roman Catholic Church is inadequate to the task of a full exploration of its potential as a source of social capital in Rwanda. In particular, the following analysis treats reconciliation only superficially as a theme common to many Christian traditions. It does not explore the many ways this has been interpreted throughout Christian tradition. If time and space permitted I would have liked to engage a fuller analysis of this tradition, especially its relation to the conceptual framework of forgiveness which was taken up in the Gacaca legislation.

[41] Ian Linden, Church and Revolution in Rwanda (Manchester: Manchester University Press, 1977), 8.

[42] Ibid., 286.

[43] Saskia Van Hoyweghen, “The Disintegration of the Catholic Church of Rwanda: A Study of the Fragmentation of Political and Religious Authority,” African Affairs vol. 95 (1996), 400.

[44] Ibid., 401.

[45] Ibid.

[46] Abdullahi Ahmed An-Na’im, “State Responsibility Under International Human Rights Law to Change Religious and Customary Laws.” in Human Rights of Women: National and International Perspectives. Rebecca J. Cook, ed. Philadelphia: University of Pennsylvania Press, 1994, 171.

[47] Ibid., xiv.

[48] Ibid., xiv.