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24 AFRICA PEACE AND CONFLICT JOURNALAlthough gacaca was conceived of as reconciliatory justice, its potential for incitingethnic tension should not be underestimated, especially if Hutus continue to perceiveit as an instrument of Tutsi power. Eghosa Osaghae observes that ‘the relevance and applicabilityof traditional strategies have been greatly disenabled by the politicization,corruption and abuse of traditional structures, especially traditional leaders, whichhave steadily delegitimized conflict management built around them in the eyes of manyand reduced confidence in their efficacy’. 34 Mamdani asserts that during the gacaca sessions,victims are almost solely seen as ‘Tutsi genocide survivors’, which leads to hisconclusion that gacaca courts impose a victor’s justice. 35 Some observers point to a tendencyto assign collective guilt to Hutus under the gacaca system. 36 Alana Tiemessennotes that despite the government’s agenda of forging a single political identity forRwandans, the identity of participants in the justice process remains linked to ethnicity.37 Corey and Joireman express the concern that ‘without the equal application of thegacaca process to both Hutu and Tutsi, it will be perceived more as revenge than reconciliation’.38 It is therefore necessary to analyse how the use of gacaca might affect thesecurity of all Rwandan citizens in the future, especially if it continues to be seen aspursuing inequitable justice and accentuating the ethnic divide.John Conley and William O’Barr have noted that Rwandan culture is gendered. 39The gacaca system of conflict resolution is also beset by limitations stemming from accusationsof gender bias. Traditional African indigenous structures were largely exclusionaryon the basis of gender. The majority of indigenous women were not includedin the primary structures of decision-making. The gacaca courts reflect the resurrectionof this aspect of traditional patriarchal culture in modern Rwandan society. Thepatriarchal nature of the gacaca system is one reason why crimes of rape are underrepresentedin Rwanda’s post-genocide healing process. As a result of the public natureof the gacaca, most women who were raped during the genocide are reportedlyreluctant to come forward and testify in gacaca courts because the burden of proof forrape lies with the woman, whose only weapon is her word against that of the accused.In the report Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda,Human Rights Watch details the factors hindering the effective handling of cases ofrape, including the vulnerability of women to stigmatization, retraumatization, and alack of adequate witness-protection programmes. 40In addition, as noted above, the gacaca system does not appear to be achieving theobjective of reducing pressure on Rwanda’s prisons. In fact, it seems that gacaca hearingsmerely facilitate a ‘rotation of prisoners’; although some prisoners are being releasedby national courts, others are simultaneously being convicted by the gacaca and34. E. E. Osaghae, ‘Applying traditional methods to modern conflict: Possibilities and limits’ inZartman, Traditional Cures for Modern Conflicts.35. Mamdani, ‘The truth according to the TRC’.36. M. Drumbl, ‘Rule of law amid lawlessness: Counseling the accused in Rwanda’s domestic genocidetrials’, Columbia Human Rights Review, 29 (Summer 1998), 546–67.37. Tiemessen, ‘Rwandan gacaca’.38. Corey and Joireman, ‘Retributive justice’.39. J. M. Conley and W. M. O’Barr, Just Words: Language and Power (Chicago, University of ChicagoPress, 2005).40. Human Rights Watch, Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda, 29September 2004, www.hrw.org/en/node/11975/section/1.
Gacaca Courts in Rwanda 25incarcerated. 41 The gacaca experience in Rwanda illustrates the complexity and tensionsbetween the concepts of justice and peace. In most cases of genocide, finding theright balance between justice and reconciliation or between retribution and forgivenessis a delicate process. Wendy Lambourne notes that there are challenges anddilemmas in meeting the need for justice in the aftermath of violence because sometimesjustice tends to compete with the need to secure peace. 42 This discord leads EvaBertram to conclude that the questions of ‘amnesty and reconciliation are one of themost troubling quandaries for peacebuilders’. 43Enhancing the Efficacy of the Gacaca SystemThe Rwandan state has played a significant role in the gacaca process, but there is aneed to balance this with a role by civil society in transitional justice. The inclusion ofcivil society inside and outside Rwanda can contribute towards addressing some ofthe limitations discussed above. In specific, civil society and the international communityshould continue to support the Rwandan government in implementing gacacaproceedings, and civil society organizations must be allowed to monitor them. Suchtransparency will help ensure that the system is effective in the promotion of justice,healing, and reconciliation.As noted, one challenge of the truth-telling process is dealing with the risks confrontingwitnesses and those who confess to crimes. In this regard, it is important for theRwandan government to adopt measures to protect the personal safety of witnesses andvictims without adulterating the process of transitional justice. It is equally importantfor the gacaca courts to ensure that the accused have a right to a fair trial. This can beachieved through mechanisms for ensuring that gacaca defendants, especially those facinglong terms of imprisonment, can appeal to the formal court system. Currently, thegacaca has no appeal process. Gacaca judges should continually receive training and capacitybuilding to assist their handling of cases. To ensure that the gacaca process is notcontinually perceived as an exclusionary form of ‘justice for the powerful’, the governmentof Rwanda should give the system a mandate for trials involving atrocities committedby all Rwandans, irrespective of their official or unofficial status.CONCLUSIONThe gacaca endogenous system of postconflict justice and reconciliation is informativeand instructive because it is a community-owned process of transitional justice.Most Rwandans ‘own’ the gacaca process as they participate in the election of thejudges. One key achievement of the system is that it provides space for the truth to betold about the genocide. In this respect, gacaca processes are paving the way for the41. J. Fierens, ‘Gacaca courts: Between fantasy and reality’, Journal of International Criminal Justice, 3:4(2005), 896–919.42. W. Lambourne, ‘Post-conflict peacebuilding: Meeting basic needs for justice and reconciliation’,Peace, Conflict and Development, 4 (April 2004).43. E. Bertram, ‘Reinventing governments: The promise and perils of United Nations peacebuilding’,Journal of Conflict Resolution, 39:3 (September 1995).
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