Rwanda

Between April and July 1994, Rwanda experienced one of the most devastating waves of mass killing in modern history. In 100 days, nearly three-quarters of the total Tutsi population (which constituted around 11 percent of the overall population of Rwanda in 1994, while the Hutu comprised nearly 84 percent) were murdered and hundreds of thousands more exiled to neighboring countries.³ What distinguishes the Rwandan genocide from other cases of mass murder in the twentieth century, and in particular from the genocide of Jews during the Second World War, is the use of low-technology weaponry, the widespread involvement of the Hutu population in the killings, the social and cultural similarities of the perpetrators and victims, and the astonishing speed of the genocide.

After defeating the genocidal government and assuming control over the country in July 1994, the Rwandan Patriotic Front (RPF) faced immense challenges in dealing with genocide suspects. In the aftermath of the genocide, the RPF rounded up approximately one hundred and twenty thousand genocide suspects and transported them to prisons across Rwanda built to hold only forty-five thousand detainees.⁴ However, there was little capacity for prosecuting so many individuals. The national judiciary had been almost entirely destroyed: Most of Rwanda’s judges and lawyers had been killed or had fled the country, and the judicial infrastructure had been decimated. This meant the government was faced with the simultaneous need to address – with very limited resources – the serious crimes committed by thousands of everyday civilians, but without reimprisoning the vast majority of those individuals and thus recreating the problem of overcrowded jails.

Over time, three institutions were mandated to prosecute different levels of Rwandan genocide crimes: the International Criminal Tribunal for Rwanda (ICTR), the Rwandan national courts, and a system of eleven thousand community-based courts known as gacaca.⁵ On 8 November 1994, the UN Security Council authorized the establishment of the ICTR to prosecute the orchestrators and most serious perpetrators of the genocide.⁶ In 1996, with the assistance of the UN, foreign governments, and NGOs, the Rwandan government began a massive overhaul of the national judiciary, training new judges and lawyers and establishing new courts across the country to begin dealing with the backlog of genocide cases. The national courts were initially slow in hearing the cases of genocide suspects. However, over time, the courts became more efficient and were praised, albeit reservedly, by some international monitors for their speed and improved legal standards.⁷

The slow progress of the national courts in handling the genocide caseload necessitated the creation of the gacaca jurisdictions in 2001. Derived from the Kinyarwanda word meaning the lawn or the grass⁸ – in reference to the conducting of hearings in open spaces in full view of the community – gacaca is a traditional Rwandan method of conflict resolution that has been controversially revived and transformed to meet the perceived needs of the post-genocide environment. Gacaca gives respected individuals elected by the local population the duty of prosecuting cases and excludes professional judges and lawyers from participating in any official capacity. In 2001, more than two hundred and fifty thousand gacaca judges were elected by their communities in eleven thousand jurisdictions.⁹ Broadly speaking, the dual aims of gacaca are to prosecute lower-level genocide suspects and to begin a process of reconstructing the damaged social fabric.¹⁰ Among transitional justice institutions around the world, gacaca is unique in its mass involvement of the population that experienced mass conflict firsthand. Today, nearly every Rwandan adult has participated in gacaca in some way, including providing eyewitness testimony during trials.

Uganda

Since 1986, northern Uganda has experienced one of Africa’s longest and most destructive civil wars, between the LRA and the Ugandan government. The civilian population has suffered widespread murder, rape, torture, abduction, looting, and mass displacement into internally displaced persons (IDP) camps, resulting in immense social and cultural fragmentation among northern communities, especially in the Acholiland region. A key feature of the LRA’s violence against civilians has been the abduction of thousands of children, including from within the Acholi group, who have been trained to commit atrocities back in their home communities. A 2007 UN study of perceptions among northern Ugandans shows that the majority of the affected population considers both the government and the LRA responsible for the harm it has suffered.¹¹

In the Rwandan situation, transitional justice responses to the northern Ugandan conflict have occurred at the international, national, and local levels. The ICC received its first ever state referral when President Museveni referred the situation in Uganda to the ICC prosecutor in December 2003. The ICC’s decision to open investigations in the Uganda situation was based on the gravity of the crimes reported and the inability of Ugandan authorities to capture and arrest LRA commanders considered responsible for mass atrocities in northern Uganda, who at that time were located in southern Sudan.

At the national level, the Ugandan Amnesty Commission has played a central role in handling returned combatants from the LRA and other rebel groups since the passing of the Amnesty Act in 2000. The Act established the Amnesty Commission to oversee the amnesty process, affording it two primary responsibilities, which highlight the importance of reintegration and reconciliation: first, “to persuade [rebels] to take advantage of the amnesty and to encourage communities to reconcile with those who have committed the offences,” and second, “to consolidate the progress so far made in amnesty implementation and ensure that more insurgents respond to the amnesty and that the community is ready to receive them.”¹²

A key outcome of peace talks in Juba between the LRA and the Ugandan government between 2006 and 2008 was the creation of a War Crimes Division (WCD) of the High Court in May 2008. The passing of the International Criminal Court Bill in May 2010 enabled the WCD to try cases of genocide, crimes against humanity, and war crimes and, in accordance with the agreements signed in Juba, it will only prosecute the senior leaders of the LRA. The only case to have come before the WCD so far is that of Thomas, an LRA commander charged with twelve counts of kidnapping with intent to murder.

A central debate regarding responses to the northern Ugandan conflict – and a principal point of contention between the Ugandan government and the LRA during the Juba negotiations – concerns the possible use of community-based rituals to reintegrate former LRA combatants and reconcile them with their victims and affected communities. The LRA delegation in Juba, along with various northern Ugandan civil society leaders, advocated the use of local practices to address crimes committed during the conflict. These parties argued that local rituals – especially the Acholi rituals mato oput and gomo tong, which involve perpetrator confession, cleansing, reparation, and reintegration – constituted a vital alternative to prosecutions of atrocity perpetrators by the ICC, which they characterized as a neo-colonialist imposition by external actors and a form of punitive justice that would deter the LRA from further negotiations and ultimately jeopardize peace.¹³

In 2006, a Ugandan parliamentary committee was established to consider whether local (particularly Acholi) rituals could be codified and nationalized, similar to Rwanda’s reform and formalization of the gacaca courts. “We are considering whether something like gacaca in Rwanda provides a model for us here in Uganda,” a government official said. “There are pros and cons to the use of traditional practices and we have to weigh up what the best approach is. But certainly we believe traditional methods can teach us a lot about dealing with the current situation.”¹⁴ Not all government or civil society advocates of local rituals in the context of serious crimes, however, believe they should be codified and nationalized. Some of these actors argue that different ethnic groups should employ their specific ritual methods and that attempts to codify a nationwide system of rituals would suppress much of their cultural specificity and thus undermine their popular legitimacy.¹⁵

The resonances of gacaca in current considerations of local transitional justice mechanisms in Uganda represent a cyclical genealogy of ideas. Much of the reasoning behind the Rwandan government’s post-genocide formalization of gacaca drew on notions of localized governance and popular justice central to the ideology of Yoweri Museveni’s National Resistance Army/Movement (NRA/M) in Uganda.¹⁶ Key aspects of this ideology were later adopted by senior figures in the Rwandan Patriotic Front who fought with the NRA, including current Rwandan president Paul Kagame, the NRA’s head of military intelligence between 1986 and 1989.¹⁷ Similar modes of intimate violence, as well as the close ideological and political connections between national leaders, explain the important similarities in Rwandan and Ugandan approaches to community-based accountability and reconciliation.

Justice for Mass Atrocity: Reflecting the Nature of Modern Conflict

First, community-based approaches to transitional justice are crucial for reflecting the agency of community-level actors in the forms of conflict evident in Rwanda, Uganda, and elsewhere. This highlights a key shortcoming of the Nuremberg model of post-conflict accountability favored by many human rights and legal advocates, which focuses on only a handful of elite suspects. It is not self-evident that elites accused of orchestrating and inciting violence should be considered more worthy of accountability than the everyday citizens who killed, raped, or maimed their victims at the community level. In many of my interviews with atrocity survivors in Rwanda and Uganda, when I asked whom they view as the principal perpetrators in the conflict, they cited the specific neighbor who wielded the machete or threw the grenade rather than the faceless government or military official who may have given the order to attack.¹⁸ For many survivors, the overriding concern regarding justice is desert for the immediate individual perpetrators of crimes. As Romain, a Rwandan genocide survivor in Butare, said, “Punishment is absolutely necessary at gacaca. We must punish the bad people for what they did. We can’t simply let them go free after everything they did to us.”¹⁹ Given the intimacy of violence in settings such as Rwanda and Uganda, the widespread desire for accountability for individuals at the community level is not surprising.

Furthermore, much of the recent literature on the Rwanda and Uganda conflicts highlights the fluidity and variety of violence, with some episodes driven by elite incitement but others by local agency motivated by a wide range of factors, including greed and opportunism.²⁰ Many individuals used the cover of mass conflict to settle personal scores, to increase their political standing within their communities, or to grab land and possessions. In such cases, it is again unclear why we should consider justice only for elites. Such a view does not cohere with local populations’ understandings of conflict, which account for different levels of perpetrators, or with external analyses of the agency and causes of these conflicts. Implicit in community-based approaches to transitional justice such as gacaca and the northern Ugandan rituals is the recognition that everyday citizens committed horrendous crimes and must – in some form – be called to account for those actions.

Facilitating Engagement in Pursuit of Broader Social Objectives

While community-based transitional justice is necessary to account for community-level agency during conflict, it also displays a capacity to contribute to social objectives which are broader than accountability for crimes. Diffuse forms of violence affect societies in economic, relational, and psychosocial terms at national, provincial, communal, and individual levels. Underpinning gacaca and the northern Ugandan rituals is a view that community-based transitional processes are required to address these various effects of conflict. In particular, these processes emphasize the need for intimate engagement among parties involved in conflict – especially between perpetrators and victims – in the pursuit of objectives such as truth and reconciliation.

A useful definition of engagement comes from Norman Porter in his analysis of the potential for reconciliation in Northern Ireland. Porter emphasizes the reconciliatory necessity of creating spaces for public discourse and debate, in which a vital element is open and fair engagement between previously antagonistic parties. Speaking in terms applicable beyond the Northern Irish context, Porter argues that meaningful engagement entails “practices involving honest, committed encounters with others, not least those with whom we disagree most.”²¹ In these settings, individuals make themselves vulnerable to others and the most important result is that “through [these practices] others are opened up to us and we to them, others are permitted to be heard in their terms and we in ours.”²²

Engagement is a critical component of gacaca and the Ugandan rituals, given the degree to which the entire community is encouraged to interact face to face during hearings and ceremonies. In particular, engagement entails antagonistic parties debating the root causes of their conflicts. It recognizes that there will be deep-seated animosity between individuals and between groups after an event as destructive as genocide. My fieldwork in Rwanda and Uganda indicates that many participants in gacaca and local rituals view direct engagement in these transitional processes as important for the pursuit of truth, reconciliation, and other societal aims.²³ In the case of Uganda, my own research as well as the findings of a 2007 study by the United Nations Office of the High Commissioner for Human Rights (for which I was the technical advisor and co-author) found that IDPs in northern Uganda viewed local rituals as important for truth recovery, given their emphasis on former combatants’ confessions and their encouragement of reparations from perpetrators.²⁴ “Some people think there is no punishment in the Acholi rituals,” said Acholi Paramount Chief Rwot Acana:

In the case of gacaca, many interviewees state that truth telling at gacaca serves an important therapeutic function. Both suspects and survivors argue that the opportunity to speak openly at gacaca about events and emotions concerning the genocide has contributed to their personal healing. Many guilty suspects claim to have gained a sense of release from feelings of shame and dislocation by confessing to, and apologizing for, their crimes in front of their victims and the general assembly at gacaca. Many survivors, on the other hand, claim to have overcome feelings of loneliness by publicly describing the personal impact of genocide crimes and receiving communal acknowledgment of their pain. As Paul, a survivor whose father, two brothers, and one sister were killed during the genocide, said after a gacaca hearing in Ruhengeri:

Much of the Rwandan population argues that truth telling at gacaca contributes to the restoration of relationships between individuals and to broader reconciliation. In particular, much of the population interprets gacaca as an important dialogical forum in which various individuals and groups discuss issues that the community might otherwise avoid. The most important feature of this space is its integrative nature. Following a gacaca hearing in the Butamwa sector of Kigali Ville province, Michel, the president of the judges panel, described the importance of truth telling for reconciliation. “Gacaca is important for reconciliation,” he said, “because what happens here is real justice where we are all together, criminals and the innocent, and people can talk to one another face-to-face.”²⁷

It must be noted, however, that while there is widespread enthusiasm among the population for engaging in truth telling at gacaca, many Rwandans also express skepticism about the extent to which the discursive space created at gacaca will contribute to more meaningful engagement between genocide perpetrators and survivors outside of gacaca. Many Rwandans, especially genocide survivors, are wary of truth telling at gacaca. Some survivors argue that the discursive forum at gacaca may simply become the scene of further acrimony and discord if debates between perpetrators, survivors, and others in the general assembly grow heated. Juliette, a survivor in Kigali Ville whose parents and two brothers were killed during the genocide, said, “I dread going to gacaca. I don’t want to see the people who killed my family. It scares me to think what will happen between us when we come face to face there.”²⁸ Chantal, a survivor in Kigali Ngali province, said, “I go to gacaca but I go very reluctantly. At gacaca, you hear such terrible things, you cannot even imagine. Sometimes the judges come to my house during the week and ask me to come to gacaca because they know I have evidence to give.”²⁹

While many survivors express concerns over the potential for acrimony during gacaca hearings, many also argue that to create a space in which they can engage with perpetrators, whatever the nature of that dialogue, is better than having no such space. When asked whether any good could come out of gacaca, Juliette replied, “Yes, because although it scares me to see the prisoners, it will be good to hear them tell the truth.”³⁰

Implicit in gacaca and the Ugandan rituals is the view that reconciliation after mass violence will require difficult dialogue, a genuine confrontation with the sources of conflict, and parties’ mutual dedication to rebuilding fractured relationships. Such a confrontation may on occasion prove detrimental to chances of reconciliation if it only produces further acrimony, and such experiences are legion in the lifespan of gacaca. Engagement is not an inherently positive dynamic; when not managed effectively, it is equally capable of fomenting discord. For engagement to produce positive results, it requires the immense dedication of the parties involved, a genuine sense of trust between them, and effective forms of mediation to ensure that this sense of trust is maintained.

The forms of engagement that community-based practices in Rwanda and Uganda facilitate distinguish them from other transitional institutions such as war crimes tribunals, which rarely allow open or meaningful interactions between victims and perpetrators and limit discourse to legal matters to the exclusion of more emotional concerns. In contrast to this emphasis on engagement, one criticism of the ICTR expressed by some Rwandans is that, by undergoing trials hundreds of miles away in Arusha, high-level perpetrators avoid direct confrontation with the communities against whom they committed genocide and therefore they receive insufficient justice. Fidèle, a gacaca judge in Musanze district, said:

Similar sentiments were expressed during a case in 2009 concerning Rwandan genocide suspect Francois Bazaramba, who had fled to Finland. Members of the Finnish court where Bazaramba was on trial traveled to his former village in southern Rwanda. A Finnish journalist traveling with the court interviewed a local gacaca judge named Mamasani about the conducting of the trial overseas. The journalist reported, “[Mamasani] feels that the final truth in [the trial] could be reached only if Bazaramba and the witnesses in the case would come before the local people. ‘When he is not there, people can say anything they like.’ Mamasani feels that a Gacaca court would be the right place to deal with the Bazaramba case.”³² In such interpretations, justice delivered through the ICTR or foreign courts is perceived as less rigorous for genocide suspects because it entails no direct engagement with the general population, save the small number of everyday Rwandans called as witnesses in ICTR cases.³³ Similarly, survivors such as Esther Mujawayo celebrate the fact that gacaca requires suspects to confront their communities directly. “After 1994,” Mujawayo writes, “a deafening silence descended upon the whole population…. No one, absolutely no one could have imagined that one day the killers would speak…. With gacaca, the word [about the genocide] has spread.”³⁴

The ICTR has often been criticized for appearing detached from day-to-day realities in Rwanda, as it is based in Arusha, Tanzania, and for failing to provide an adequate outreach and information program for the population it purports to serve.³⁵ These problems have undermined its legitimacy among many Rwandans. Indeed, many ICTR personnel view such detachment from domestic concerns as a virtue for an international institution trying to provide “impartial” justice. Disengagement from local affairs is thus not merely a symptom of an international approach to justice but a deliberate policy. When asked whether he had traveled from Arusha to Rwanda to gauge the impact the ICTR was having on the Rwandan population, one tribunal judge replied:

Such a view separates the act of punishing perpetrators from its likely political, legal, social, and cultural consequences. It regards either retributive justice (giving perpetrators what they deserve) or deterrent justice (eradicating a culture of impunity by dissuading future criminals from offending) as the ICTR’s ultimate objective. This perspective holds not only that considering the impact of justice is beyond the ICTR’s remit but that substantive consideration of this may hamper the tribunal’s work by jeopardizing its perceived impartiality. Such views serve to further distance the ICTR from, and undermine its legitimacy in the eyes of, the Rwandan population. Consequently, the ICTR displays little inclination to affect the day-to-day relationships of previous antagonists in Rwanda and thus contributes little to the cause of national reconciliation, which, according to its statute, it is designed to promote.

The problem of detachment in the name of impartiality affects international justice responses to mass conflict more generally and highlights their limitations in addressing the effects of violence. In contrast, the emphasis of community-based transitional justice approaches on proximity and face-to-face engagement between participants is a core reason that many participants in these processes view them as vital means to truth, reconciliation, and other complex social aims.

Problem of Indigeneity

First, some commentators argue that gacaca and the Ugandan rituals are not strictly indigenous or traditional and therefore lack legitimacy within affected communities. As a variation on this theme, some commentators argue that gacaca’s emphasis on public truth telling violates an innate Rwandan cultural tendency toward silence and privacy.

In the case of northern Ugandan, Tim Allen – one of the most vocal critics of the turn toward local rituals – argues that these practices reflect the growth of a donor and international civil society “industry” around community-based approaches to transitional justice, rather than a more legitimate expression of the concerns of the communities in question. Several foreign NGOs, principally the USAID-funded Northern Ugandan Peace Initiative (NUPI), have actively supported the reinvigoration of local rituals, particularly in the Gulu district of Acholiland.

Closely related to this international element, a key issue surrounding the use of local rituals is the role of Ugandan traditional leaders in their administration. An influential 1997 report by Dennis Pain, titled “The Bending of the Spears,” called for a community-based approach to resolving conflict in northern Uganda.³⁷ Spurred by the findings of the report, the Belgian government in 1999 funded research conducted by the Gulu-based organization ACORD into Acholi traditional leadership. Subsequently, in 2000, Acholi traditional chiefs known as rwodi were elected and the Rwot of Payira in the Gulu district was named the Acholi Paramount Chief, leader of the KKA, a position that Allen claims had never before existed.³⁸ NUPI and other NGOs have helped identify traditional leaders and run programs introducing them to the population, mainly to Acholi youth groups and IDP communities.³⁹ This sustained involvement of international actors in the revival of traditional leadership and supposedly traditional practices such as the cleansing and reintegration rituals, Allen argues, undermines the supposed indigeneity of the practices and consequently their claimed legitimacy.

In the case of gacaca, several non-Rwandan commentators believe that it contravenes core features of Rwandan culture. Bert Ingelaere and Lars Waldorf, who have conducted extensive research into gacaca, are deeply skeptical of gacaca’s emphasis on public testimony because they believe it opposes a Rwandan cultural preference for silence and secrecy and thus violates embedded social norms. Ingelaere argues, quoting anthropologist Danielle de Lame, “A ‘cult of secrecy’ and the ‘consensus of the subjects’ are two intertwined aspects of Rwandan culture. They function as remnants of the traditional organization of society.”⁴⁰ Waldorf, also quoting de Lame, argues, “It is unrealistic to expect people to tell the truth about the genocide in gacaca given all the cultural and micro-political constraints (not to mention the threat of prison). There is a ‘pervasive’ culture of secrecy in rural Rwanda.”⁴¹ Thus, according to Ingelaere and Waldorf, gacaca represents a state-based imposition of culturally illegitimate precepts and practices on the Rwandan population.

Human Rights Concerns: Lack of Due Process

Second, both gacaca and the Ugandan rituals have been heavily criticized for failing to meet international standards of legal due process in the handling of serious crimes. Human rights organizations such as Amnesty International (AI) and Human Rights Watch (HRW), as well as Western legal commentators, have regularly formulated such critiques.

Regarding gacaca, some human rights observers argue that, in granting the community a central role in hearing and deciding genocide cases, gacaca cannot provide judicial mechanisms that are sufficiently transparent and impartial. AI argues, “Since community members both provide the information regarding genocide offences and judge the suspected perpetrators, anything outside of their active and honest participation nullifies the fairness of gacaca tribunals.”⁴² Such honest participation, most human rights monitors state, is unlikely given the level of distrust and trauma prevalent in the community. If individuals lack confidence in those with whom they interact at gacaca, or if they are too traumatized or afraid, they are unlikely to cooperate in the institution or to pass fair judgments. Many critics argue that gacaca will simply become a form of mob justice.⁴³ Gacaca judges, whose role is to mediate hearings, some commentators argue, are also usually the family or neighbors of the suspects and survivors who participate in the general assembly. Therefore, they are likely to have vested interests in the outcomes of hearings. The danger of handing down partial judgments is exacerbated by the absence of legal counsel at gacaca. Critics argue, for example, that gacaca affords no protection to an innocent suspect who is accused unfairly by a general assembly and a panel of judges determined to see him or her punished.

Several examples of human rights critiques of gacaca illustrate the most common arguments against gacaca. In a report published in December 2002, AI argues:

Elsewhere, AI argues that it is:

Five years later, AI repeated similar criticisms of gacaca, namely that it “fails to meet international standards for fair trial and lacks independence, impartiality and transparency.”⁴⁶ HRW echoed this view in 2009, equating gacaca with the U.S. government’s military commissions in Guantanamo Bay: “Human Rights Watch knows of no criminal justice system other than Rwanda’s highly discredited gacaca courts in which hearsay is admitted before a jury of non-lawyers, as would be the case with the revised military commissions.”⁴⁷

Similar human rights critiques have been directed at the Ugandan rituals, particularly during the Juba peace talks between the Ugandan government and the LRA carried out from 2006 to 2008. A particular binary framing dominated these negotiations among the parties themselves and their various donor and civil society interlocutors.⁴⁸ Supporters of “restorative justice” and “peace” advocated the use of community cleansing and reintegration rituals and claimed that support for the ICC elevated abstract legal norms over the practical necessity of achieving peace in northern Uganda. On the other side, human rights advocates of “retributive justice” claimed that law must supersede politics and that any attempts to defer or remove the ICC indictments of the LRA leadership or to employ community-based approaches to accountability would contravene international law and international standards of justice.⁴⁹

Elite Control

Third, some critics argue that community-based transitional justice in Rwanda and Uganda is little more than an attempt by domestic elites to extend their power and influence through ostensibly decentralized processes. Regarding the Ugandan rituals, part of Allen’s critique concerns the vested interests of the newly created “traditional” leadership in Acholiland which is central to the revitalization of the rituals. Allen argues that these elites advocate the use of these rituals because it affords them a cultural and political foothold which they otherwise would lack. Therefore, we must be wary of the power politics that underpin the renewed interest in these community-based responses to violence.⁵⁰

Similarly, critics of gacaca such as Ingelaere, Waldorf, and HRW view it fundamentally as a mechanism of state control. They highlight the Rwandan government’s interference in gacaca hearings which, they argue, is aimed at extending political influence from the center to the periphery and collectivizing the guilt of the majority Hutu population. These critics often argue that the state interferes unjustifiably in many gacaca hearings, particularly to pressure judges to convict certain suspects.⁵¹ These concerns were central to HRW’s amicus curiae to the ICTR in 2008 arguing against the possible transfer of suspects from Arusha to the Rwandan national courts on the grounds that the individuals would not receive a fair trial in Rwanda, as highlighted by state interference in genocide trials in the national courts and gacaca.⁵²

Ingelaere and Waldorf argue that gacaca constitutes a “state-driven, state-owned and top-down process”⁵³ and that, in Rwanda’s experience, “local justice is political justice.”⁵⁴ Waldorf criticizes the degree of state coercion necessary to compel citizens to participate in gacaca and highlights what he describes as “everyday forms of peasant resistance to state authority”⁵⁵ represented by many Rwandans’ refusal to attend gacaca and the resulting low turnouts in many jurisdictions. Ingelaere contends that, in the communities where he has observed gacaca, “local authorities generally do not play an overtly active role in the… proceedings but they are always present, together with some security forces, and they have received instructions from higher authorities that they need to monitor the Gacaca’s activities closely and write reports. Some strictly judicial tasks such as information gathering have been assigned to the local authorities, with the population and judges only playing a secondary role.”⁵⁶ For these commentators, the state rather than the citizenry constitutes the primary actor in gacaca and is motivated by a desire to use gacaca as a tool of political control over the countryside and for the subjugation of the Hutu population.

Problem of Indigeneity

Of the three critiques of community-based transitional justice, the argument concerning indigeneity is the least convincing. That practices such as gacaca and the northern Ugandan rituals are not strictly “indigenous” or “traditional” does not inherently delegitimize them. While the criticisms by Allen and others are undoubtedly driven by the romanticization of these practices in some quarters⁵⁷, they fail as outright critiques. The argument regarding indigeneity holds only if one assumes that these processes must reflect customary or traditional practices for affected communities to consider them legitimate. Such a view presupposes a notion of cultural purity, in which social practices emerge fully formed from historical antecedents. In reality, no social process can be characterized in this way, as cultural evolution is inevitable. Certainly Allen is right to raise concerns about the degree of civil society imposition of the Ugandan rituals on the local population. This criticism, however, pertains only to a small range of “official” rituals, which involve international donors and local NGOs, when affected communities practice a plethora of other rituals that do not display the forms of external warping that Allen describes.⁵⁸

My research in Rwanda and Uganda highlights that the perceived legitimacy of community-based transitional processes depends more on the extent of the popular participation they enable and their effectiveness in addressing local concerns.⁵⁹ These immediate questions are more critical in determining the legitimacy of community-based practices than abstract questions of whether or not they emerge naturally from historical practices. In other words, whether these processes work is more important than their origins.

Regarding Ingelaere’s and Waldorf’s critique of gacaca and contravention of a perceived Rwandan culture of silence and secrecy, there is a danger that such depictions essentialize the entire society. The anthropological work of de Lame, which informs much of Ingelaere’s and Waldorf’s analyses, focuses on a single hill in Kibuye province in the 1980s and early 1990s, and de Lame herself is cautious about extrapolating from the “hillside micro-culture”⁶⁰ to the country as a whole. Certainly some Rwandans are reluctant to engage in truth processes during gacaca but this stems more from immediate pragmatic concerns, such as the time-consuming nature of some gacaca hearings – although they are significantly shorter than international trials, popular participation in weekly gacaca hearings can still be arduous, especially in agricultural communities where participants lose time typically spent farming – and the impact of regional insecurity, than from any innate Rwandan reluctance to engage in public discourse on divisive issues. Furthermore, my field research in Rwanda over the last eight years shows a high degree of popular participation in gacaca, including engaged public debates about genocide crimes and their communal impact.⁶¹ Evidence from a wide range of gacaca jurisdictions shows little of the preference for secrecy suggested by Ingelaere and Waldorf and instead a willingness by many Rwandans to speak openly about their fractious past. Therefore, the argument about gacaca’s supposed undermining of Rwandan cultural norms is far from convincing.

Human Rights Concerns: Lack of Due Process

The fervent criticism of community-based transitional processes by groups such as AI and HRW highlight the central role played by human rights organizations and legal commentators in the broader field of transitional justice. These critics tend to adopt a narrow view of what justice must entail following mass conflict and/or repressive rule. They tend to advocate international standards of justice influenced by the Nuremberg model, namely conventional court hearings for small numbers of elite suspects who have the right to defense counsel of their choosing and to have their cases adjudicated by an impartial judiciary. Regarding community-based approaches to transitional justice, these critics argue that such processes fail to meet these international standards of justice. This critique, however, is untenable for three reasons.

First, critics of community-based practices propose unrealistic and illegitimate modes of accountability in transitional justice societies such as Rwanda and Uganda. Implicit in their critiques are alternative visions of what justice should entail, which themselves are often impractical and illegitimate, especially when handling large numbers of cases concerning community-level suspects. It is unclear how resource-constrained societies such as Rwanda and Uganda, whose judiciaries have been undermined by conflict, can feasibly adopt conventional legal approaches to prosecute tens or hundreds of thousands of suspects. The due process critique does not wrestle sufficiently with the serious practical limitations that confront societies recovering from the forms of diffuse violence described in Section I. A key virtue of community-based transitional processes such as those enacted in Rwanda and Uganda is their ability to address atrocity more rapidly and cheaply than international legal institutions, which inevitably take many years for each case and must pay enormous salaries to international staff.

The judicial alternatives proposed by proponents of the due process critique would also lack popular legitimacy in settings such as Rwanda and Uganda. If gacaca, for example, were to subscribe to critics’ legalistic prescriptions, local judges would limit communal interactions to discussions of facts considered critical to determining the guilt or innocence of suspects. The community would be encouraged to respond only to questions from judges and not to debate with one another during hearings. Lawyers in turn would be present to advise survivors and suspects on how best to construct their respective arguments and to intervene in hearings if they believe that judges are contravening the Gacaca Law.⁶² At the political level, the main problem with the proposed formal approach to gacaca is that it defies the spirit of gacaca discernible from the government’s and population’s views. The population expects to participate in largely open, undirected hearings in front of judges they have elected, and to debate and discuss both legal and nonlegal issues.⁶³ The population expects that gacaca will function very differently from a conventional courtroom. The formal approach implied by human rights critics would prove alienating, distancing the population from the workings of a judicial system in which it would be entitled to participate only when called as witnesses and only in response to questions from judges and lawyers. Such strictures would greatly limit interactions between participants in gacaca.

Because the formal alternative seeks to minimize communal involvement by giving an increased role to judges and lawyers, it directly opposes most Rwandans’ self-definitions and their dialogical interpretation of gacaca. Viewing the negotiated approach as a potential cause of further acrimony and violence, the formal version of gacaca advocates an alternative that would lack popular legitimacy. Critics who advocate a more formal approach to questions of justice generally, and who specifically criticize gacaca for failing to meet formal requirements, would undermine the popular participatory spirit of gacaca and therefore seek to impose on gacaca a set of guidelines that the population is unlikely to consider appropriate.

Second, critics of community-based transitional mechanisms fail to recognize that these practices pursue objectives other than retributive justice. Therefore, to critique them solely for their contravention of due process norms is to fail to analyze them on their own terms. The strictly formal legal approach to transitional justice severely limits the range of issues that communities can discuss and debate during hearings and ceremonies. This narrow discourse is not only problematic because it fails to meet most Rwandans’ and Ugandans’ expectations of how local processes should operate, and therefore lacks popular legitimacy, but at a pragmatic level it means that the community cannot pursue certain objectives (particularly those that may not necessarily relate directly to formal justice). The formal approach would limit hearings to discussions of legal facts, to the exclusion of many emotionally motivated expressions which – as we saw in Section II – much of the population considers valuable functions of gacaca and the Ugandan rituals.⁶⁴

In the case of gacaca, many survivors in particular view the greater sense of freedom of expression during gacaca hearings, relative to those in conventional courtrooms, as important for fulfilling their emotional and psychological needs after the genocide. Furthermore, the presence of lawyers, as the formal approach to gacaca would require, would undermine the content and tone of open, largely undirected, communal discourse that are otherwise possible during gacaca hearings. The presence of lawyers would significantly alter relations among members of the general assembly, increasing the use of technical legal language and modes of argumentation, and subvert power dynamics as fully trained lawyers operate in a space where (often minimally trained) judges are supposed to be the primary facilitators of gacaca. In such a situation, the population would feel more inhibited and intimidated than in a forum where they are among their neighbors, giving evidence before judges whom they have elected. In advocating the inclusion of lawyers in the gacaca process on the basis of international standards, critics of the institution risk undermining the popular ethos of gacaca and the modes of dialogue that ensue at gacaca.

Third, in the case of gacaca, critics overstate the extent to which it fails to protect individual rights during genocide trials. The key problems with this complaint are that it ignores the various judicial safeguards in place in gacaca to protect suspects from potential miscarriages of justice and how gacaca has operated in practice.⁶⁵ Gacaca cannot protect against all miscarriages of justice but it is unjustified to argue that gacaca in no way protects individual rights. That judges are required to pass judgments and sentences on the basis of a consensus (or, when failing to achieve consensus, on a majority) of nine judges, rather than on the opinion of a single judge, constructs an important layer of protection for the accused. Judges must discuss cases in camera, where they are less influenced by the views of the community, before reaching a decision and communicating it to the general assembly. This forces judges to debate cases in private, often at great length, thus adding a crucial element of slow, critical consideration. My research indicates that nationwide, approximately twenty-five percent of gacaca cases have resulted in acquittals.⁶⁶ The high acquittal rate may not be particularly surprising given that, reflecting the society as a whole, the majority of popularly elected gacaca judges are Hutu and may be inclined to judge their fellow Hutu sympathetically when they have been accused of genocide crimes. This situation is far from the brand of mob justice predicted by many human rights observers of gacaca.

Furthermore, if individuals found guilty at gacaca believe they have not received a fair hearing, they may appeal the decision first to the jurisdiction where they were initially tried and, if still dissatisfied, to the next higher jurisdiction. Twenty-nine of the eighty-two genocide suspects I interviewed across Rwanda after the commencement of the gacaca trial phase in 2005 said they had appealed their convictions or sentences. Twenty-four of these suspects, all of whom were subsequently either exonerated or had their sentences decreased, stated that they were satisfied with the decisions handed down at the appeals level.⁶⁷ Measures such as gacaca’s appeals process are particularly important for protecting innocent suspects, who may feel that they cannot receive a fair trial in their home communities. Human rights critics who equate popular participation in gacaca with lynch law ignore these protective features that are central to the gacaca process.

Elite Control

In their critique of elite control over community-based processes, commentators overstate the role of the state and other leaders. As already seen in relation to the northern Ugandan rituals, Allen focuses on a narrow range of Acholi rituals when criticizing the role of the revived traditional leadership. The majority of northern Ugandan rituals have not been captured by these new elites and therefore do not display the degree of elite manipulation that Allen adduces.

In the context of gacaca, few of the commentators who argue that it is largely a tool of elite control over the Rwandan population support this argument with concrete evidence from observed gacaca hearings or community interactions.⁶⁸ Ingelaere argues broadly that “local authorities do not play an overtly active role” during hearings but they have been instructed to write reports for higher authorities. However, he does not elaborate on concrete instances when such reports have been written and the impact of this on the running of gacaca. Waldorf meanwhile cites examples of state coercion only in high-profile cases such as those involving Major General Laurent Munyakazi, a high-ranking Hutu military official, and Father Guy Theunis, a Belgian priest. While my own observations indicate that state officials do from time to time intervene directly in hearings, this is a generally uncommon occurrence and usually confined to communities close to Kigali, where there is invariably a greater state presence. On three occasions that I have witnessed, government officials have intervened during hearings and been told by judges to desist from speaking on the grounds that the community should be free to debate the genocide evidence at hand. On all occasions, the officials followed the judges’ orders.⁶⁹ Such instances of judges’ standing their ground represent important moments of local agency that remain underrecognized in most non-Rwandan critiques of gacaca.

There is evidence, including from my own observations, that state officials in some locations actively encourage – or even coerce – the population to participate in gacaca hearings. There is little evidence, however, to suggest that this is a widespread phenomenon – the large number of hearings that have been canceled due to low turnouts suggests quite the opposite – or anyhow that it would undermine the importance of popular participation in gacaca.⁷⁰ Waldorf’s argument regarding coercion seems contradictory: He argues first that low turnouts at hearings represent “peasant resistance” to state compellance of participation in gacaca and then later that “[L]ow participation rates have forced the state to employ coercion.”⁷¹ He also attributes the slowness of the initial information phase of gacaca to low participation during hearings.⁷² However, I observed substantial participation during the information phase, with some of the highest turnouts at any point in the gacaca process, given the population during that period viewed gacaca as novel and a source of relief after the long absence of any accountability process for genocide crimes. From my observations, I concur with Waldorf that the information phase was very slow and this diminished the population’s enthusiasm for participation in gacaca, at least until the beginning of trials. The primary cause of this slowness, though, I contend, was not a lack of participation but rather the overly forensic nature of the early information gathering, especially arduous and highly contested discussions in the general assembly regarding property that people had lost during the genocide.

There is a further problem with some observers’ arguments concerning government coercion of popular participation, namely that they center around how spontaneously the population chooses to attend hearings rather than how actively it provides and debates testimony once hearings are underway. It is unclear why a state that requires citizens to participate in a legal process to which they could directly provide evidence should be seen as engaging in unjustifiable coercion. In such cases, there appears to be little difference between the actions of the Rwandan government and the legal requirement in many countries for citizens with relevant evidence or who have been summoned to jury service to actively participate in trials.

Non-Rwandan commentators’ critique in this regard also presupposes that the Rwandan state is capable of penetrating deeply into the eleven thousand jurisdictions where gacaca operates in order to fundamentally control the gacaca process as a whole. As Timothy Longman, Scott Straus, and Lee Ann Fujii highlight in their analyses of the causes of the genocide and the motivations of those who committed murder – reflecting our earlier discussions of diffuse conflict – even a highly centralized bureaucracy such as Rwanda’s has limited reach into communal life. These authors counter a common view of the genocide as solely the result of government command from the center to the periphery, highlighting that state orders were often rejected, there was regular dissension between elites and the general population at the community level, and in some places more localized motivations, such as fear and greed, better explain people’s decision to kill.⁷³ Similarly, gacaca manifests some cases of government interference, but these should not be generalized to characterize the process as a whole or to undermine the importance of popular agency in gacaca. In analyzing the operation of gacaca, Longman (who initially expressed some concerns about the possibility of state control over gacaca⁷⁴) argues, “Several factors help to protect the independence of the gacaca courts…. [T]he sheer number of judges on each panel helps to make influencing them more difficult…. Related to this, the sheer number of courts will make it difficult for any individual or group to influence the entire process.”⁷⁵ We should therefore be highly skeptical of analyses characterizing gacaca as simply another means of Rwandan state control over the entire country. Such accounts greatly overestimate the ability of the government to monitor and influence directly a court system as diffuse as gacaca.

Finally, while government and other elites certainly play important roles in community-based processes such as gacaca and the northern Ugandan rituals, they are far from the central actors. It is more appropriate to highlight the agency of everyday citizens who are their principal participants. One key aspect of this local agency which critics of local transitional justice practices regularly overlook is – returning to the earlier theme of accountability for diffuse crimes – their ability to address the individual actions of everyday citizens. Contrary to the concerns of Ingelaere, Waldorf, and others that gacaca has been used by a Tutsi-dominated government in Rwanda to collectivize the guilt of the majority Hutu population, gacaca has consistently individualized guilt by requiring individual suspects to face justice in front of their communities. This process has countered the problem of collectivized guilt and highlighted the agency of individual perpetrators. As discussed above, gacaca’s high rate of acquittals also shows that the process has been successful at exonerating many accused individuals, which has a substantial impact on their standing in the community. In viewing gacaca solely as a tool of state control, critics have often ignored these important community-driven aspects of the accountability process.