Rwandan Platform for Dialogue Truth and Justice

RWANDAN RECONCILIATION PROCESS: OUTCOME ANALYSIS OF GACACA COURTS Callixte Kavuro

The paper presented at Great Lakes Region Shareholders’ Conference for Sustainable Peace Conference: Center for the Book, Cape Town; September 10, 2011

I want to thank the organizers for inviting RDTJ to this conference. Being responsible for concluding a conference is a heavy task that requires conscientiousness and dedication. At this point, we all would like to congratulate ourselves for having spent our precious time cogitating to the past horrific events, analyzing the outcome of transitional justice mechanism in place, and debating on how the division might be transcended for the Great Lakes Region to enjoy a sustainable peace and goodies of independence. I would nonetheless like to discuss the outcome of the Rwandan reconciliation through Gacaca traditional courts dispute resolution.

RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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1. Introduction: Horrific events After five years of the tragic Genocide, the Government of Rwanda, in March 1999, established the National Unity and Reconciliation Commission with the responsibility of using all available means to mobilize and sensitize Rwandans to assist the government to foster unity and reconciliation among the people of Rwanda who had experienced

long

periods

of

bad

governance

characterized

by

divisions,

discriminations, human rights abuse and acts of violence. 1 To achieve this, the Gacaca Courts were established in 2001 and started its operation on 10 March 2005. 2

The rationale of Gacaca Courts creation was to speed the resolution of the huge backlog of cases; reduce the prison population; promote community healing and social cohesion; contribute to reconciliation; and as such move on from crisis. 3 Yet again, Rwandan conventional courts could not cope with an influx of cases of allegedly genocide suspects. For example, from December 1996 to December 2006, the Rwandan conventional courts managed to try about 10,000 cases while by 2000, there was 120,000 cases on court roll.

Nonetheless, the challenge of delivering justice for genocide in Rwanda couldn’t be resolved by Gacaca as gradually seemed to be huge. The challenge includes cumbersome criminal trial procedure, inconsideration of substantive criminal rights, political interference with the function of the Gacaca courts, and lay-presiding officers (known as ‘Inyangamugayo’). Consequently, instead of healing social distance and division of the past and establish a society based on social justice, it has furthered

1

See http://www.nurc.gov.rw/ National Service of Gacaca jurisdictions available at accessed on the day of 5th Semptember 2011. 3 Human Rights Watch, ‘Law and Reality: Progress in judicial reform in Rwanda’ July 2008. 2

RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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tension, hatred and mistrust between Hutu and Tutsi ethnicity. Gacaca was however used as a mechanism to instigate fear and terror in the minds of majority Hutu for the minority Tutsi to centralize and consolidate power in an autocratic system.

2. What is Gacaca Court? The term Gacaca literally means ‘grass’. This term implies that a dispute could be resolved by a panel of judges made up of community elders sitting on ‘grass’ under the trees. In pre- 1994 Rwandan judicial system, the Gacaca traditional court could be used to resolve the dispute over land, cattle, marriage, loans and property matters. The dispute was resolved by devising compensatory solutions aimed at restoring societal harmony. After 1994 tragedy, Gacaca traditional court was renovated and designed to be ‘participatory and reconciliatory justice’ which could be used to deal with the backlog of genocide cases. The traditional court jurisdiction was no longer restricted to private disputes but extended to genocide crimes in terms of the Organic Law No. 40 of 2000. 4

Therefore, Gacaca courts have five main goals: (i)

To reveal the truth on the genocide events;

(ii)

To try the overwhelming number genocide crimes more quickly;

(iii)

To eradicate the culture of impunity;

(iv)

To help reconcile Rwandans and strengthen the unity of communities, and

(v)

To demonstrate that Rwanda is capable of solving its own problems without outside intervention or direction.

The Organic Law divides genocide crimes into three categories: the first category, relegated to the exclusive jurisdiction of the national courts and the ICTR (International 4

Organic Law no. 40/2000 of 26 January 2001 establishing the Organisation, Competence and Functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994. RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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Criminal Tribunal for Rwanda), is reserved for the planners of genocide and people who held positions of authority; category 2 crimes include murder and bodily harm; and category 3 comprised solely of malicious damage to property. The Organic Law gives the Gacaca courts the power to impose a sentence including restoring the status quo ante (eg returning of a stolen thing), correctional supervision, and imprisonment ranging from 12 years to life imprisonment. It did not have jurisdiction to hear crimes of first category and sexual violence claims.

In 2008, the Rwandan parliament transferred most of the remaining category 1 cases to Gacaca, including cases of sexual violence. The Gacaca court jurisdiction was extended to impose life imprisonment ‘in solitary confinement’ for category one since the death penalty was abolished in 2007, after the application by ICTR prosecutor to transfer the case of Fulgence Kayeshima in Rwanda failed on the ground that Rwanda does not respect human rights or comply with international standard of justice. 5

3. Did Gacaca reconcile Rwandans and strengthen the unity of communities or reveal the truth of genocide events? Promoting national reconciliation was the foremost priority of Rwandan society in the aftermath of the Genocide. A wide range of policies and initiatives were undertaken to promote national unity and reconciliation. 6 Among these initiatives was the establishment of Gacaca court, which was institutionalized in a spirit of bringing about national peace, unity and reconciliation. The Organic Law did not limit the Gacaca mandate to the human rights abuses committed under the auspices of the President Habyalimana’s regime. Nor did it restrict such abuse against one ethnic. However, in the

5

Amnesty International: ‘Suspects must not be transferred in Rwandan courts for trial until it is demonstrated that trials will comply with international standards of justice’ Al Index:AFR 47/013/2007. See further Human Rights Watch, ‘Law and Reality: Progress in judicial reform in Rwanda’ July 2008 at p32. 6 See General Kayumba Nyamwasa et al, ‘Rwanda Briefing’ August 2010. RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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first sessions of the Gacaca courts, the authority told assembled community members that these courts were restricted to the consideration of human rights violation committed by the pro-Hutu government, and directed against Tutsi ethnicity. This measure is viewed as restriction on truth telling and accountability which; effectively nullified any promise of reconciliation that Gacaca contained.

This resulted in Gacaca court, instead of protecting the rights of all participants of the proceedings and the full participation of all members of community, only prosecuted Hutu. It was not interested in defense or any mitigating factor argument by a Hutu. The transitional justice has from the beginning of the operational of Gacaca being based on bias, partiality and turning a blind eye to its mandate to carrying out the executive wishes. The Gacaca court was not used to prosecute crime against humanity and war crimes committed by RPF soldiers or revenge killings by Tutsi from 1990 to 1995. 7 In March 2005, following the preliminary phase of trials, approximately 761,000 Hutu suspects stood accused of genocide. By 2010, Gacaca courts have prosecuted around 1.5 million cases. 8 The Gacaca courts was left with 54 genocide cases still pending before winding up their activities in December 2011. 9 Basically, the Gacaca’s objective was thus to fill the prisons rather than emptying them through reconciliation process. 10

In criminal cases, an accused person’s right to a fair trial should be observed, in that, he/she has a right to legal representation, calling witnesses, to remain silent and not self-incriminate, to adduce and challenge evidence. But these fundamental criminal rights were not afforded to the accused person brought before the Gacaca courts, and the courts could, regardless of such substantial injustice consideration, impose a 7

Peter Erlinder, ‘The UN Security Council Ad Hoc Rwanda Tribunal: International Justice or Judicially – Constructed “Victors Impunity’ De Paul Journal for Social Justice, Vol. 4, Fall 2010, Number 1 at pp 193 198. 8 Human Right Watch, ‘Rwanda – Country Summary’ January 2011. 9 Hirondelle News Agency, ‘Rwanda: Gacaca service says 54 cases still pending’ 10 August 2011. 10 Freedom House (Publisher), Countries at Crossroads 2007 – Rwanda, 25 September 2007, Online, UNHCR Refworld, available at: http://unhcr.org/ (accessed 3 August 2011). RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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sentence including life sentence. The jurisdiction of Gacaca also includes to try a suspect who is not under its jurisdiction. The courts had tried most refugees who were at the time of filing the charges, trial procedures and sentencing already in exile. This group of persons was convicted and sentenced without having an opportunity to challenge cases against them. This was an attempt by President Kagame’s government to persuade the countries hosting Rwandan refugees to withdraw their refugee status on the ground of criminal liability. 11

Other initiatives that the government has undertaken with a view to promoting national unity and reconciliation, and this was not limited to the enactment of legislation to punish the propagation of discrimination and sectarianism. 12 These vague defined laws are used to prosecute Hutu elite, even Hutu children born after the horrific events for having genocide ideology.

Regarding Gacaca courts, the RDTJ is of the view that the government initiatives are partial and bias. Gacaca was neither independent nor an effective court. It was established with sole objective in mind – to protect Tutsi elite’s interest. Therefore, it cannot be said that the Gacaca had revealed the truth on the genocide events hence there was no room for cross-examination to demolish the testimony given before it, to discredit the state witness, to detect and expose discrepancies, to illicit suppressed facts which could support the case of accused, or to give an opportunity to the accused to call 11

See Article 1(F) of the 1951 Convention Relating to the status of Refugees, which is similar to s4 of Refugees Act No. 13 of 1998; which provides that: (1) A person does not qualify for refugee status for the purpose of this Act if there is a reason to believe that he or she: (a) has committed a crime against peace, a war crime or crime against humanity, as defined in international legal instruments dealing with any such crimes; or (b) has committed a crime which is not of political nature and which, if committed in the Republic would be punishable by imprisonment; or (c) has been guilty of the acts contrary to the objects and principles of the United Nations organization or the Organisation of African Unity; or (d) ….. (e) …… 12 See General Kayumba Nyamwasa et al, ‘Rwanda Briefing’ August 2010. RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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witness(es). These cases were largely heard based on hearsay, fabricated evidence, and presumptions. In so doing, all members of Hutu community are viewed as criminals.

4. Factors that hinder genuine reconciliation process The Gacaca court is a system of grassroots legal bodies inspired by traditional power structure. Over 9,000 courts were set up across the country. A Gacaca panel was composed by 9 locally elected judges. These judges lacked legal background as they were elected on the basis of being solely respected among the community. Legal professionalism was excluded in order to accommodate every member of the community. Participation by members of the community was mandatory. 13

In the conciliatory spirit of original Gacaca, suspects were encouraged to confess both before they have been accused and again following their hearing in return for a reduced sentence. 14 Victims were equally encouraged to forgive perpetrators. In spite of confession and forgiveness, Gacaca judges could impose any sentence depending on the nature of crimes. 15 The Gacaca court did not take into consideration the presumption of innocence and did not prove the case against the accused beyond reasonable doubt. Therefore, the Gacaca prosecution procedure falls foul of conventional/western criminal procedure.

Due to this fact, many of the challenges in the Gacaca process stem from the inherent contradiction of using a conciliatory process for a retributive purpose on one hand and traditional dispute resolution for the purpose of ending impunity on the other. Retributive punishment theory seeks to impose harsher sentence. It is vengeance for

13

See Shannon E. Powers ‘Rwandan’s Gacaca courts: Implication of international criminal law and transitional justice’ Insights (2011) Volume 15, Issue 17. 14 Gacaca Law 2004 arts. 54-63. 15 Human rights Watch, ‘Law and Reality: ‘Progress in judicial reform in Rwanda’ July 2008. RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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harm done, exacted by the state rather than by the victim of the harm. 16 It works through official sanctions calculated to interfere with the life and liberty of an offender by infliction of suffering for an offence committed. 17

Retribution justice as opposed to restoration justice insists on proportionality between punishment and a crime committed. It is based on elementary idea, deeply ingrained in popular sentiment, that an individual who has caused harm should suffer harm. 18 The Rwandan authority has rejected restorative justice which places an emphasis on the need for reparation, healing and rehabilitation. 19 Consequently, it furthers conflict and recidivism. In adopting retribution justice, the Gacaca courts could have observed due process and have taken into account mental elements of criminal liability as a conventional court does. The elements of a crime such as intention to commit genocide, duress or undue influence could have been determinative. The judges decided the matter based on moral, emotions, and sympathy without applying criminal principles.

Traditionally, African traditional courts seek to restore harmony and steers away from revenge, banishment, exclusion/retaliation history of western criminal justice as notable characteristics. 20 Bertelsmann J pointed out five features of African legal system, namely 21 : (1) A concern to shame the offender and then to reincorporate him or her back into the community once the initial expression of community repugnance has been demonstrated;

16

Ibid. See Jonathan Burchell, ‘Principles of Criminal Law’, 3rd Edition, 2005, Juta and Company Ltd: Lansdowne at p68. 18 Ibid at 69. 19 Ibid at 82: This reconciliation is achieved by a process of deliberation involving the victim, offender and representatives of the community. 20 Keevy I “Ubuntu versus the core value of the South African Constitution” 2009 Journal for Juridical Science at p19. 21 S v Maluleke 2008 (1) SACR 49 (T) at para 30. 17

RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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(2) Avoiding as far as possible the segregation of the offender or his or her marginalization into a sub-community of similar social rejects; (3) A recognition that the supernatural plays a part in justice; (4) A focus on community affairs aimed at reconciling the parties; and (5) Restoring harmonious relations within the community and ensuring that families of the involved parties are always fully involved.

By contrast, the Rwandan authority has refused to grant amnesty to perpetrators, preferring instead retributive measures. Nonetheless, harsher punishment to offenders has been shown internationally to have little success in preventing crimes 22 or restoring harmony between the disputants. Retribution justice does not create a good relationship between the parties but further hostility, tension and social division.

In practice, for both structural and political reasons, Gacaca courts did not live up to their potential to contribute to social reconstruction. Politicization of Gacaca grew more serious as the process developed and the Gacaca process became more coercive, for instance when some of the courts acquitted a number of the accused, government officials began to suggest publicly that some of the Gacaca court judges would be charged of crimes of genocide. This statement had a chilling effect that discouraged courts from acquitting all but the most egregiously falsified cases. 23

By 2010, the Gacaca court heard 1.5 million cases. The implication of such widespread is that all Hutu are guilty of genocide. The Gacaca courts have actually implied collective guilt on all Hutu, suggesting that all Hutu by their very nature are genocidal. 24 The Gacaca courts found the mere onlookers, or those who were standing at a barricade and 22

John M. Darley (2005) ‘On the unlikely prospect of reducing crime rates by increasing the severity of prison sentences’ Journal of Law and Policy at 189. 23 See Timothy Longman, ‘Trying times for Rwanda: Reevaluating Gacaca Courts in post genocide reconciliation’ Harvard International Review available at http://hir.harvard.edu/law-of-the-land/trying-times-for-rwanda. 24 Ibid. RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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contributed nothing to the killing, guilty. 25 Children who innocently and inquisitively walked behind the violent mob were found guilty irrespective of their ages. At a trial hearing, the people were scared to defend an accused because they were afraid that they will be charged as well. Judges have a tendency to listen to accusations more than to arguments in defence – there was no equilibrium between the defence and the prosecution. 26

The operational of Gacaca court is not the only cause that hinders the reconciliation process in Rwanda. There are several factors that impede from the realization of the genuine reconciliation process. These factors include President Kagame pursuit of absolute power and his intolerance for political opposition; prosecution of opponents and critics of RPF (Rwandan Patriotic Front) 27 ; exclusion of the Hutu community from a meaningful share of power; failure to prosecuting the Tutsi who participate in countergenocide; disallowing the Hutu to bury and mourn their beloved ones; memorial ceremonies that remembers one ethnic of Rwandan society, holding a Hutu child of age of 12 criminally liable for genocide ideology 28 , the denial of ethnic identity and status on one hand and the enactment of laws that protects Tusti ethnic as well as advocacy of Tutsi minority vulnerability around the world, and other various legitimate factors. 5. Overview of conflict and the impact of Rwandans failure to reconcile on Great Lakes Region: The conflict in Great Lakes can be traced back the early of 1960s to 1990s, which were mainly fuelled with the Tusti exile in Uganda attempting to regain political control in Rwanda through a series of rebellion attack. Nothing that was really done to solve this

25

Ibid. Human Rights Watch, ‘Law and Reality: ‘Progress in judicial reform in Rwanda’ July 2008, p74. 27 General Kayumba Nyamwasa et al, ‘Rwanda Briefing’ August 2010. 28 Human Rights Watch, ‘Law and Reality: ‘Progress in judicial reform in Rwanda’ July 2008, pp40-43. 26

RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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problem through peace agreement or reconciliation by Hutu government, instead the Rwandan Hutu government instigated the counter attack against the rebels. Simultaneously, the Burundian Tutsi authority oppressed and suppressed Hutu. A turning point in escalation of Hutu-Tutsi tensions came in May 1965 with the first postindependence elections to the national assembly, when a Hutu candidate scored a landslide victory. However, the King appointed a Tutsi as a Prime Minister. The Burundian Hutu anger exploded in abortive coup directed at the King, followed by sporadic attacks against Tutsi elements countryside. Repression swiftly followed that led to 1972 Hutu massacre that left a hundred of thousands dead and thousands of others fleeing the country and seeking refuge in Rwanda, DRC, Tanzania and other countries. 29

Twenty-one years after the 1972 massacre, democratic election was held. The clear victory scored by the predominantly Hutu effectively wrested power away from the Tutsi minority. The FRODEBU victory proved short-lived: On October 21, 1993, the newly elected Melchior Ndadaye, was arrested and assassinated by units of the Tutsi dominated army, thus unleashing yet another ethnic violence. 30 These events unfolded both in Rwanda and Burundi contributed to social disintegration in Rwanda. They left Rwandan society deeply and bitterly polarized along ethnic line. The tension between Hutu and Tutsi were further heightened with the assassination of President of Rwanda Juvenal Habyalimana and the President of Burundi, Cyprien Ntaryamira on April 6, 1994. In July 1994, Burundi, Tanzania, Uganda, and DRC have welcomed influx of Rwandan Hutu refugees who sought refuge there after the Rwandan fell to RPF army due to the fear that the Tutsi government will take revenge.

29

Matthew J. Smith, ‘Synthesis Report: Genocide and the Great Lakes Region’ The Atlantic Philanthropies, p3. Genocide and Crimes Against Humanity/Burundi, Feb 2, 2011 available at http://www.enotes.com/genocideencyclopedia/burundi 30

RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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The perceived retaliation became real when Rwanda, in 1996, invaded the DRC (Democratic Republic of Congo) with the spirit of carrying out retribution against the Hutu who sought refuge in DRC. To succeed with this clandestine campaign, the Kigali regime claimed that the principal reason of invasion included (i) to support the rebellion (Alliance of Democratic Forces for the Liberation of Congo – ADFL), (ii) Rwanda security concern about the presence of a large number of ex-Hutu government officials residing in DRC refugee camps and (iii) ongoing persecution of Tutsi minority in DRC by President Mobutu’s regime. 31

As a consequence of invasion, the Tutsi-Hutu conflict was not then limited to two countries of Rwanda and Burundi, but however, the conflict was taken outside their borders. Following the invasion of DRC, the ex-regime army have from time to time tried to regroup, reorganize and made some attempts to attack Rwanda. 32 The Rwandan President Kagame has repeatedly said he is not prepared to negotiate with them or any other vocal refugees outside the Rwanda by calling them ‘genocidaires’. Instead he had followed them in the forest of DRC where he killed tens of thousands of refugees. When the RPF assumed power in 1994, the world focused on the genocide committed against the Tutsi but forget to look into other war crimes and crimes against humanity committed against Hutu majority.

In avoiding peace and reconciliation the leaders in the region have become dictators and authoritarians. Since 2000, there is a rise of many rebellion groups due to the lack of democracy and freedom in Great Lakes region. In DRC, there is Mayi Mayi rebellion, CNDP of Laurent Nkunda, PARECO and many others. There is a Lord Resistance Army in Uganda, which is a threat to peace and security in the region. In Rwanda, it is said that the government is enjoying the economic growth. But growth, while armed people

31 32

Matthew J. Smith op.cit. General Kayumba Nyamwasa et al, ‘Rwanda Briefing’ August 2010, p3. RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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from eastern DRC still pose a major threat to Rwandan society, is not for long. There are FDRL and RUD that still resurface; and many vocal refugee groups outside of the Rwanda. In Burundi, the leader of FNL Agatho Rwasa returned in exile after dissatisfaction with the results of elections. He is still a threat to Burundi. 33

6. Democracy and Good governance in the Great Lakes region There is a visible lack of democratic and good governance practices in the Great Lakes region, which are sources of instability and security. The leadership lacks a vision for the betterment of the lives of their people. Normally, political leaders should act according to a model of virtue that involved placing the common good above the interests of a fraction of the society. On the other hand, economic and regional integration is not based on good cooperation but mistrust due to armed factions across the borders. The prolonged absence of political consensus-building among the States has been the result of constant misunderstandings in their relations movements sustained by multinational corporations. Many people in our countries have experienced decades of internal oppression, frequently unquestioning submission to authority figures and rulers. The social, political, economic, and even religious institutions of the society- outside of the State control – have been deliberately weakened, subordinated, or even replaced by new regimented institutions used by the State or ruling party to control the society. The population has often been turned into a mass of isolated individuals unable to work together to achieve freedom, to confide to each other, or even to do much of anything at their own initiative. 34 The population becomes weak, lacks self-confidence, and is incapable of resistance. People are often too frightened to share their hatred of the 33

Etienne Mutabazi “Independence (Freedom) and Democracy in Great Lakes Region: Dream, Utopia, Reality and possibility?” (2011) – Paper presented at Independence Celebration conference – Durban: Rwandan, Burundian and Congolese refugee communities celebrating their respective independence. 34 Gene Sharp, From Dictatorship to Democracy: A Conceptual Framework for Liberation, Fourth ed., 2010, p. 3. RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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system and their hunger for freedom even with family and friends. People are often too terrified to think seriously of public resistance. People face suffering without purpose and a future without hope. 35

Some individuals and small groups may have conducted brave but impotent gestures, asserting some principles or simply their defiance. However noble their motives, such acts have been insufficient to overcome the people’s fear and habit of obedience, which is a necessary prerequisite to destroy the dictatorship. Sadly, those acts may have brought instead only increased suffering and death, not victories or even hope.

Crimes of genocide in Rwanda have been extended to include divisionism, revisionism, gross

minimization,

and

genocide

ideology/denial. 36

Genocide

charges

and

prosecutions in Gacaca courts have been used effectively to intimidate and eliminate government critics, journalists, human rights activists, and opposition politicians. For instance, Mrs. Victoire Ingabire UMUHOZA ended up in jail because she fought for freedom. Mr. Bernard Ntaganda and Deogratias Mushaidi suffered the same fate. Rwisereka, was beheaded. Journalists and human rights defenders are ending in exile. We, Rwandans, Burundese, Congolese, and Ugandans are now living in exile due to the fact that transitional justice has failed in our respective countries.

7. Conclusion: Our problems are man-made. Therefore, they may be solved by man. No problem of human destiny is beyond human beings. This means that We, the people are able to solve the majority of our problems, but we lack the will to do so, we do not lack the capability, we are simply unwilling to solve our problems. By not standing up and not

35 36

Gene Sharp, op. cit, p. 3 Human rights Watch, ‘Law and Reality: ‘Progress in judicial reform in Rwanda’ July 2008, pp34-35. RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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taking the load upon us, we create more problems. 37 The highest manifestation of life is this: ‘that a being governs its own actions’. 38 The question is whether we are willing to transcend the division and hatred, and become people who are determined to have a honest dialogue about the root causes of the perpetual problems we face in order to find durable solutions based on a genuine and truthful national reconciliation. 39

The object of Gacaca courts to reconcile Rwandan society was not attained due to their politically influenced process. As a result, they became one sided, favouring some victims and ignoring others. 40 It is very important to note that, firstly, Tutsi and Hutu moderate were the victims of genocide. But a Hutu could not lodge his/her complaint relating to genocide crimes with Gacaca courts. Secondly, Hutu have been victims of Kagame regime’s war crimes, crimes against humanity, and even possible acts of genocide in Rwanda and DRC, according to a United Nations mapping report and Robert Gersony report. 41 Nothing has been done either domestically or internationally to judicially redress injustice perpetrated against Hutu.

It is apparent that the Gacaca Courts were used to develop the conflict from latent conflict to manifest conflict. The latent conflict exists in a relationship where the parties believe that their aspirations cannot be achieved simultaneously or perceives a divergence in their values, needs and, interest whereas manifest conflict employs their 37

Greg Mills, “Why Africa is poor: And what Africa can do about it?” Penguin Books, 2010, p335. Duncan Green, “From poverty to power: How active citizens, and effective states can change the world” Oxford International, 2008, citing St Thomas Aquinas, at p23. 39 Etienne Mutabazi “Independence (Freedom) and Democracy in Great Lakes Region: Dream, Utopia, Reality and possibility?” (2011) – Paper presented at Independence Celebration conference – Durban: Rwandan, Burundian and Congolese refugee communities celebrating their respective independence. 40 Jennifer Fierberg, MSW, ‘Kagame’s Diplomacy is broken: How to re-invent it’ 23 August 2011. 41 Peter Erlinder, ‘The UN Security Council Ad Hoc Rwanda Tribunal: International Justice or Judicially – Constructed “Victors Impunity’ De Paul Journal for Social Justice, Vol. 4, Fall 2010, Number 1 at pp 193 198: The version of Garsony Report detailing the massive RPF killings was given to the UN’s Madame Ogata, Kofi Annan, and others, as well as the U.S. State Department’s Brian Atwood, George Moose and the Secretary of State Warren Christopher. See further UN High Commissioner for Human Rights Report leaked to the press on August 27, 2010: Report of the mapping exercise documenting the most serious violation of human rights and international law committed within the territory of Democratic Republic of Congo between March 1993 and June 2003. 38

RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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power in an effort to defeat, neutralize or eliminate each other to protect or further a particular interest. 42 As evidenced in this paper, the Gacaca courts were manipulated and became a mechanism to oppress and suppress Hutu majority; to silence opponents and critics, and to protect and further the Tutsi’s belief, perception, needs and interests. In so doing, they were able to achieve power aspiration in Rwanda and sought to extraterritorially further such aspiration.

It is very regrettable that after half a century of independence, people of the Great Lakes Region are not enjoying the goodies of independence. It is sad that our people have missed opportunities to learn from their mistakes. The reason behind is that the leadership has over time designed a modus operandi of not listening to the people. In the majority of the cases, the leadership has worked only to further its own interest without considering the interest of the people. This carelessness has gone as far as ignoring human life or using human life as a shield for own interest. The People of the Great Lakes Region have also kept quiet and did not confront their problems, openly and with determination. 43

The RDTJ is of the view that if the peace and security had to prevail in Great Lakes, the peace, unity, justice and reconciliation must thoroughly be revisited in Rwanda. There should be peaceful and democratic change in Rwanda, which invests in protecting fundamental freedoms; promotes the values of respect of human rights and the rule of law; and establishes democratic, openness, and accountable institutions. Healing of individuals and communities should be a cornerstone for a shared future durable peace and security. Rwandan policies should not be discriminated against Hutu. Hutu should not be collectively treated as genocidaires or unaccountable without distinction of the 42

J. Brand et al, ‘Labour Dispute Resolution, 2nd edition (2008) at p3-4. Etienne Mutabazi “Independence (Freedom) and Democracy in Great Lakes Region: Dream, Utopia, Reality and possibility?” (2011) – Paper presented at Independence Celebration conference – Durban: Rwandan, Burundian and Congolese refugee communities celebrating their respective independence. 43

RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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guilty and the innocent. RPF soldiers and other Tutsi who committed crimes against humanity should have been held accountable.

RTDJ is a community-based non-profit and apolitical organization working towards the promotion of dialogue, truth, justice, reconciliation, peace and unity among all Rwandans.

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