TOWARDS JUSTICE AND RECONCILIATION IN RWANDA: TAKING STOCK
Eugenia Zorbas


Justice and reconciliation are concepts difficult to define, let alone
achieve. What may seem 'just' for a community or a country, may be very
unjust for the individual victim. There seems to be a tension between
reconciliation, implying a kind of moral compromise, and justice in the
strict, Western, prosecutorial sense it is usually used.

In the wake of violence on a societal scale, finding the right balance
between justice and reconciliation, or between retribution and forgiveness,
is an extremely delicate process and this is all the more so in cases of
genocide. In the Great Lakes region, where today's oppressors tend to
perceive themselves as yesterday's victims, justice and reconciliation
become even more subjective and difficult goals.

In Rwanda, the RPF (Rwandan Patriotic Front) dominated Government of
National Unity is prioritising, as its name implies, the reconciliation of
its citizens chiefly through a prosecutorial (trial-based) approach.
However, since 1998 there has been a recognition among the highest
Government echelons that working with a penal and legal system that is
completely overstretched - at the beginning of 2003, there were an estimated
115,000 prisoners in Rwandan jails and communal lockups (cachots) - will
require some innovative thinking and a move away from the 'white man's'
standards of justice. This is why the much talked about gacaca traditional
conflict resolution mechanism was adapted and revived.

Moves Towards Justice - Arrests, Courts, Trials and the legacy of genocide:

Despite the opening of a press office in Rwanda and the establishing of some
important precedents in international criminal law, the International
Criminal Tribunal for Rwanda's (ICTR) contribution to justice and
reconciliation within the country is very limited.

Domestically, the ICTR's work remains virtually unknown and when it is, the
Tribunal's reputation may have been irreparably damaged by early scandals
regarding endemic corruption and bureaucratic inefficiency.

The Tribunal's relationship with the Government itself has been a tormented
one; the ICTR's mandate covers the period of January to December 1994,
during which RPF soldiers allegedly carried out several massacres. The
ICTR's insistence that these crimes should be investigated led to moral
outrage from the RPF leadership, accusing the Court of putting the RPF on
the same level as the génocidaires.

Rwanda's national courts operate in parallel with the ICTR. From having a
rumoured 10 lawyers left in the country, no equipment, damaged buildings and
no money to pay their staff in 1994, the national courts had by early 2004
tried upwards of 5,500 individuals. Though many of the early trials were
severely flawed, the national legal system's performance arguably did more
to restore some kind of confidence that (some) perpetrators were being
brought to trial - by comparison, the ICTR and its hundreds of staff and
multi-million dollar annual budgets had at the beginning of 2004 completed
18 cases and arrested 66 individuals.

Even at this accelerated pace, it was thought that the Rwandan formal
judicial system would require more than a century to process the hundred
thousand plus detainees. The adaptation of a traditional, grass roots
conflict resolution mechanism - the gacaca tribunals - represents an
affordable and expedient alternative. After a pilot phase, deemed a success
by the Government, gacaca courts are due to open across the country in 2004.

Innovative Thinking - Justice and Reconciliation combined through the gacaca
courts:

The goal of gacaca is to promote reconciliation through providing a platform
for victims to express themselves, encouraging acknowledgements and
apologies from the perpetrators, facilitating the coming together of both
victims and perpetrators every week on the grass. Gacaca courts are also
empowered to hand down sentences that include community work schemes that
can directly benefit the most destitute families of victims. While gacaca is
a potential source of 'truth' on how the genocide was implemented, its
provisions for confessions and guilt pleas represent one of gacaca's most
cited shortcomings.

Under these provisions, if someone confesses before being denounced, he or
she is liable for a substantial decrease in the length of the sentence.
Importantly, confessions are only acceptable if they include the
incrimination of one's co-conspirators.

Some argue that this system of confessions creates rife conditions for
vendetta-settling. Others estimate that an additional 200,000 people could
see themselves imprisoned for genocide-related crimes. Others still say that
intimidation of potential witnesses is widespread in the countryside in
particular, where perpetrators presumably far outnumber survivors. Lastly,
participation in gacaca is mandatory, implying that subsistence farmers and
petty traders must give up a day of labour per week (on average) with no
compensation in cash or kind; this mandatory character has fomented some
resentment about gacaca.

Despite what may seem like insurmountable problems, gacaca represents the
only workable solution for bringing those responsible for atrocities to
trial promptly. It is difficult to judge the public perception of the gacaca
tribunals. Presumably, Rwanda's tens of thousands of prisoners would favour
a system that would help speed up their hearings. Also presumably, survivors
would want to see perpetrators punished, and in the spirit of 'restorative'
justice, may welcome replacing long prison sentences with more useful
community work schemes. Having said that, the genocide survivor
organisations remain extremely apprehensive of gacaca.

The real test will be when the tribunals begin working nationwide this year.
If judges are incompetent or biased, if communities conspire to silence a
witness, or if gacaca is used as a means to settle scores, neither justice
nor reconciliation will be served.

Other Measures promoting Reconciliation: The National Unity and
Reconciliation Commission (NURC)

Since its inception in 1999, the NURC has organised conferences and
workshops on the theme of unity and reconciliation, culminating in two
national summits, where Rwandans from all levels of society were
represented. The NURC has also held workshops for segments of the population
attending 'civic re-education' or 'solidarity' camps (ingandos) - such as
provisionally released prisoners and demobilised soldiers (from the national
army as well as from ex-FAR and interahamwe combatants repatriated from the
Democratic Republic of Congo (DRC)). Despite the NURC's all-encompassing
mandate, it is still perceived as being an instrument of the central
authorities and as being too 'vertical' in its activities, not doing enough
grass roots work on 'the hills'.

Collective Memory:

Monuments and memorials are institutional embodiments of collective memory
and as such, part of the reconciliation process. In Rwanda, genocide
memorials pepper the country and new ones continue to be created. Often
memorials are housed in churches - sites of many group massacres. Another
institution created to foster collective memory is the national day of
mourning for the victims of the genocide. The month of April more generally
is considered to be a month of mourning and parties or celebrations of any
kind are discouraged.

It is insightful to reflect on how different groups interpret these
memorials and annual mourning periods. Some Rwandans consider the national
day of mourning in particular as an obstacle to unity perhaps implicitly
taking the view that forgetting the past is the best way to 'move on'. But
if those who cannot remember the past are condemned to repeat it, then
memory may be the best safeguard against a recurrence of violence. Others
see the annual periods of mourning as a 'Tutsi affair', claiming that the
commemorations are only for Tutsi victims, the moderate Hutu who perished in
1994 having been forgotten. They touch upon an important issue, to which we
now turn.

The Challenges Victor's justice? Are the Hutu being collectively
stigmatised?

There is a real danger that the RPF are, or will come to be, perceived as a
party run by, and for, les Ougandais - an inner circle of Anglophone Tutsi
refugees born in Uganda. In light of this, and despite the official party
line that all citizens of Rwanda are Banyarwanda ('not Tutsi, nor Hutu, nor
Twa') and therefore equal before the law, many Hutu may feel that the
justice being meted out is a form of victor's justice.

The official refusal to recognise alleged (Hutu) victims of RPF atrocities
in Rwanda and Eastern DRC in particular buttress such feelings. And because
the national courts, and presumably this will hold true for the gacaca
tribunals and the ICTR as well, are focusing 'punishment' on the Hutu, the
judiciary's impartiality is also called into question. (Similar accusations
of the International Criminal Tribunal for Yugoslavia being a form of
victors' justice ring true to the ears of an important proportion of Serb
public opinion.)

This resentment of 'Tutsi impunity' is visible in, for example, the joke
that the ICTR, whose French acronym is the TPIR, should be renamed the
TPIH - le tribunal pénal international des Hutus. By leaving these
allegations unresolved, the RPF leaves itself open to the possibility that
political opponents will inflate the size and nature of RPF abuses.

Lastly, the unspoken assumption that all Hutu who opposed the genocide were
killed in 1994, and thus that the Hutu who were in the country during those
months and alive today are morally, if not legally, responsible also
undermines justice and national reconciliation: can such a project succeed
on the basis of such distrust?

Poverty:

In 2002, Rwanda's GDP grew by 9.7%, ranking it among the top three
performers in sub-Saharan Africa for that year. Yet according to Government
figures, approximately 60% of Rwandans live on less than US$1 per day and
the United Nations Development Programme ranked Rwanda 162nd out of 173
countries in its 2002 Human Development Index.

It is difficult to overstate the magnitude of poverty in Rwanda. In a
country where 94% of the population live in rural areas, there is also a
'mental' distance between the urban elite in Kigali and the peasants 'on the
hills'.

Rural Rwanda has not been actively engaged in justice and reconciliation
debates - though this may change with the gacaca tribunals. As in South
Africa, where victims of apartheid are calling for reparations for the
legacy of 'economic apartheid', the most destitute genocide widows and
orphans - for whom the legacy of 1994 is also, in a very immediate sense,
socio-economic - have been benefiting from the Fond National pour
l'Assistance aux Rescapés du Génocide (the FARG) created in 1998.

Importantly, this assistance goes only to Tutsi, as the genocide was against
the Tutsi and so they are the only ones to qualify as survivors (rescapés).
This helps reinforce the perception of victors' justice, mentioned earlier,
among Hutu families that may have also lost family members or had property
confiscated or destroyed.

A direct economic consequence of gacaca, if it is successful in alleviating
the burden on the penal system, will be that thousands of (Hutu) families
will no longer have to struggle to feed potentially productive members of
their family that have been in jail for up to ten years, with an unknown
proportion of them having been falsely accused to begin with.

If grinding poverty contributed to the ease with which the peasant masses
where mobilised for the genocidal project, then ensuring that rural Rwanda
is not excluded from the benefits of economic growth will not only serve the
obvious purpose of improving the quality of life of millions, it will also
help prevent the despair, humiliation and feelings of exclusion that
contribute to the cycles of violence in the Great Lakes region and to the
dynamics of genocide in Rwanda in 1994.

Debating Rwanda's Histories:

A telling indicator for how much Rwanda has moved towards national
reconciliation is the fact that since 1994, no history lessons have been
taught in Rwandan schools. There has thus been no debate in the public
domain about why the 1994 genocide happened. This is important because one
cannot say much about the prospects of reconciliation without first
reflecting on exactly what it is that gives rise to demands for it. What
motivated such large parts of the population to participate? If some were
coerced into killing, why were some others such zealous, innovative and
cruel killers?

The Government of National Unity's project of creating an all-inclusive
Rwandan nationalism around the 'Banyarwanda' label relies on achieving a
broad-based consensus among Rwandans that justice has been served. Can this
be achieved without a reconciliation with history?

Conclusion:

Rwandans have come a long way since 1994. Above and beyond their individual
struggles with their very personal experiences of genocide, Rwandans have
had to contend with periods of renewed insecurity in the North-West of the
country, worrying escalations of violence in Burundi (the Rwandan 'Siamese
twin'), a war in neighbouring DRC, severe deterioration of relations with
Uganda, the repatriation of some 2 million refugees since 1994, and a
general loss of interest in the international media and the international
community.

Perhaps of more immediate relevance for the 94% of Rwandans who live in
rural areas, pockets of droughts and food insecurity have been periodic and
the very real daily struggle for survival continues unabated. In this
context of grinding poverty, 'justice and reconciliation' perversely become
a luxury. Projects to foster unity need to become more relevant to rural
Rwandans in order to become more effective. Only then can Rwandans afford to
start thinking about justice and reconciliation. The government also needs
to recognise that a vibrant and independent civil society and media is not a
potential threat but a sustainable, countervailing force should there be
attempts to foment a new cycle of violence, for which the Great Lakes region
is tragically infamous.

* Eugenia Zorbas worked in Rwanda for one year in 2002/3 and has since
returned to academia as a PhD student in the Development Studies Institute
at the London School of Economics and Political Science, with a research
focus on post-genocide reconciliation debates in Rwanda.

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