Serious Miscarriages of Justice Need National Court Review
May 31, 2011
Rwanda’s ambitious experiment in transitional justice will leave a mixed legacy. The courts have helped Rwandans better understand what happened in 1994, but in many cases flawed trials have led to miscarriages of justice.
Daniel Bekele, Africa director

(Kigali) - Rwanda's community-based gacaca courts have helped communities confront the country's 1994 genocide but have failed to provide credible decisions and justice in a number of cases, Human Rights Watch said in a report released today. As the gacaca courts wind down their work, Rwanda should set up specialized units in the national court system to review alleged miscarriages of justice, Human Rights Watch said.

The 144-page report, "Justice Compromised: The Legacy of Rwanda's Community-Based Gacaca Courts," assesses the courts' achievements and outlines a number of serious shortcomings in their work, including corruption and procedural irregularities. The report also examines the government's decision to transfer genocide-related rape cases to the gacaca courts and to exclude from their jurisdiction crimes committed by soldiers of the Rwandan Patriotic Front (RPF), the country's ruling party since the genocide ended in July 1994.

"Rwanda's ambitious experiment in transitional justice will leave a mixed legacy," said Daniel Bekele, Africa director at Human Rights Watch. "The courts have helped Rwandans better understand what happened in 1994, but in many cases flawed trials have led to miscarriages of justice."

The report is based on Human Rights Watch observing over 2,000 days of gacaca trials, reviewing more than 350 cases, and interviews with hundreds of participants from all sides of the gacaca process, including accused persons, genocide survivors, witnesses, other community members, judges, and local and national government officials.

Since 2005, more than12,000 community-based courts have tried 1.2 million cases relating to the 1994 genocide. The violence killed more than half a million people, mostly from the country's minority Tutsi population. The community courts are known as gacaca - "grass" in the country's Kinyarwanda language, referring to the place where communities traditionally gathered to resolve disputes. The courts were scheduled to finish trials by mid-2010, but their closure was postponed in October 2010. In May 2011, the minister of justice reportedly announced that gacaca courts would officially close by December 2011.

Gacaca courts were established in 2001 to address the overload of cases in the conventional justice system and a prison crisis. By 1998, 130,000 genocide suspects were crammed into prison space designed to accommodate 12,000, resulting in inhumane conditions and thousands of deaths. Between December 1996 and early 1998, conventional courts had tried only 1,292 genocide suspects, leading to broad agreement that a new approach was needed to speed up trials.

Rwanda's 2001 gacaca law sought to resolve the bottleneck. The new gacaca courts, with government oversight but limited due process guarantees, combined modern criminal law with more traditional informal community procedures.

The Rwandan government faced enormous challenges in creating a system that could rapidly process tens of thousands of cases in a way that would be broadly accepted by the population, Human Rights Watch said. The system's achievements include swift trials with popular participation, a reduction in the prison population, a better understanding of what happened in 1994, locating and identifying bodies of victims and a possible easing of ethnic tensions between the majority Hutu and minority Tutsi ethnic groups.

Rwandans have paid a high price, though, for the compromises made when setting up the new gacaca system. Human Rights Watch found a wide range of fair trial violations. These included restrictions on the accused's ability to mount an effective defense; possible miscarriages of justice due to using largely untrained judges; trumped-up charges, some based on the Rwandan government's wish to silence critics; misuse of gacaca to settle personal scores; judges' or officials' intimidation of defense witnesses; and corruption by judges and parties to cases.

"The creation of gacaca was a good thing because it allowed the population to play a large role in the gacaca process, but I deplore you [the judges] for taking sides," one witness testified at a trial attended by Human Rights Watch.

The Rwandan government contended that traditional fair trial rights were unnecessary because community members - familiar with what happened in their area in 1994 - would expose false testimony or judicial bias. But Human Rights Watch found in many cases that potential witnesses failed to speak out in defense of genocide suspects because they feared prosecution for perjury, complicity in genocide, or "genocide ideology," a vaguely defined crime prohibiting ideas, statements, or conduct that might lead to ethnic tensions or violence. Others feared social ostracism for helping suspects defend themselves.

One genocide survivor interviewed by Human Rights Watch broke down in tears, saying he was ashamed he had been too frightened to testify in defense of a Hutu man who had saved his life and those of more than a dozen of his relatives.

"A number of people told us they stayed silent during gacaca trials even though they believed the suspects were innocent," Bekele said. "They felt the stakes were simply too high to come forward to defend people wrongly accused of genocide-related crimes."

Human Rights Watch also interviewed rape victims whose genocide-related cases were transferred in May 2008 from conventional courts, that have stronger privacy protection, to gacaca courts, whose proceedings are known to the whole community, even if held behind closed doors. Many rape victims felt betrayed by this loss of confidentiality.

The government's decision to exclude crimes committed by soldiers of the current ruling party, the RPF, from gacaca courts' jurisdiction has left victims of their crimes still waiting for justice, Human Rights Watch said. Soldiers of the RPF, which ended the genocide in July 1994 and went on to form the current government, killed tens of thousands of people between April and December 1994. In 2004, the gacaca law was amended to exclude such crimes, and the government worked to ensure that these crimes were not discussed in gacaca.

"One of the serious shortcomings of gacaca has been its failure to provide justice to all victims of serious crimes committed in 1994," Bekele said. "By removing RPF crimes from their jurisdiction, the government limited the potential of the gacaca courts to foster long-term reconciliation in Rwanda."

Serious miscarriages of justice should be reviewed by professional judges in specialized courts in the conventional system, rather than by gacaca courts, as proposed by the Rwandan government in late 2010, Human Rights Watch said.

"If gacaca courts review alleged miscarriages of justice, there is a risk of repeating some of the same problems," Bekele said. "Instead, the government should ensure the formal justice system reviews these cases in a professional, fair, and impartial way. This would help secure gacaca's legacy and strengthen Rwanda's justice system for generations to come."

Selected Quotes from the Report:  

"I cannot understand how you ask me to present my defense witnesses when I do not even know the charges against me."
- An accused man at his trial in southern Rwanda

"Why is it that any person who tells the truth and defends a man is seen as a traitor?"
- A genocide survivor testifying as a defense witness in a gacaca trial

"Testifying for the defense risks having your statements qualified as lies."
- A local government official explaining in an interview why more witnesses do not testify

"In gacaca there were a lot of personal disputes that had nothing to do with genocide."
- A genocide survivor

"You have to give money. Gacaca judges aren't paid so they make arrangements to get money from those who are accused."
- Man accused of genocide who said he had paid a bribe to gacaca judges

"The biggest problem with gacaca is the crimes we can't discuss. We're told that certain crimes, those killings by the RPF, cannot be discussed in gacaca even though the families need to talk. We're told to be quiet on these matters. It's a big problem. It's not justice."
- Relative of a victim of crimes by soldiers of the current ruling party

"Gacaca has helped the situation because people are slowly approaching each other when they didn't before."
- Gacaca judge (and genocide survivor) who participated in gacaca trials

"This is government-enforced reconciliation. The government forced people to ask for and give forgiveness. No one does it willingly... The government pardoned the killers, not us."
- Genocide survivor who was raped during the genocide

"Gacaca has left Hutu and Tutsi even more divided than before."
- Relative of a man accused of genocide

"How to decide on a policy towards the gacaca proposal?... [It] is simultaneously extremely promising and very dangerous [...] There is no way to be sure of anything: it is a giant bet for the Rwandan authorities and population, as it would be for any donor supporting it (with that difference that for donors it is not a matter of life and death, whereas for Rwandans it is)."
- Academic author of a study on the question of potential international donor support for the gacaca process