Understanding Gacaca: Dr Phil Clark on Transitional Justice in Rwanda

Dr Phil Clark exudes passion when it comes to all issues Rwanda and transitional justice. Convenor of the Oxford Transitional Justice Research network (OTJR), he is an expert on the post-genocide era of Rwanda, and his intensive knowledge and extensive fieldwork truly set his work on transitional justice apart.

The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, Dr Clark’s recently released book, is based on nine years of fieldwork in Rwanda, which lends the work an immense amount of depth and authority. This is entirely due to the sheer number of trials Dr Clark was able to witness, and the amount of in-depth interviews he was granted by Rwandans involved in every part of the process. Uniquely, he was also able to assess how and why the gacaca process has changed over time, partly due to intentional adjustments, partly due to frustration and anger.

On November 4, 2010, Dr Clark delivered an exposé of his book, followed by comments from a panel of distinguished guests, in an event sponsored by OTJR, OCAF and the Oxford Aegis Society. During his presentation, the author revealed the book’s two main purposes: first, to understand how all parties involved in the process understood their role and, second, to assess how effectively gacaca courts met their objectives. The book’s subtitle says it all: gacaca is a process of local justice, meted out and managed entirely by the very communities torn apart by the violence. The absence of lawyers or official judges from the process differentiates gacaca from the Nuremburg model, which focuses exclusively on prosecuting individuals at the highest levels in the chain of command. The violence perpetrated during the Rwandan genocide, however, required a more comprehensive form of accountability, one which could reach into the heart of the many communities that suffered and enable them to participate in processes of truth, justice, and reconciliation over time.

Clearly, the process has not been perfect. However, Dr Clark seeks to refute the idea that due to its flaws, gacaca has not been a useful process in dealing with post-genocide issues in Rwanda. He discussed the two main objections most often cited as an argument against the existence of gacaca courts: 1) they contravene the principles of due process and 2) these courts are perceived by some as a tool of the powerful Rwandan executive to extend state control over the Rwandan territory. Two very powerful criticisms to contend with, and Dr Clark did so by providing well-reasoned and balanced arguments in favour of the gacaca process as a whole, given its purpose, objectives, and explicit focus on reconciliation between victims and perpetrators.

On the first point, while gacaca does raise concerns regarding due process, Dr Clark emphasised the inherently intimate nature of the courts, whereby up to hundreds of members of a particular community participated in the trials of suspects. This is an explicit recognition of the way in which the genocide was perpetrated, and gacaca strove for the individualization of guilt, not a collectivization of Hutu guilt, which would ultimately fail to promote the necessary levels of reconciliation. Of course, there were problems with the way gacaca was carried out, namely very lenient sentences that caused resentment among the survivor population. This became known as ‘soft justice,’ where the harsh sentences promised by the government failed to materialise.

On the second criticism, as Harry Verhoeven later emphasised in his response, the Rwandan state is often seen as a monolith, either entirely reconciliatory or entirely diabolical. Of course neither is true, and studies of the Rwandan state during this period reveal the extent to which it was fractured in the aftermath of the genocide. Since the inception of gacaca, the state has been slow in making decisions, and it was in fact the ingenuity of the Rwandan population that drove the process forward.

So how effective has gacaca been, a decade on? As with any process that begins as much with trial and error as careful preparation, the results have been mixed. Even Dr Clark, a firm defender of the gacaca system of local justice, recognizes that there have been serious challenges throughout the entire process, though he argues that advocacy groups have misunderstood gacaca and thus dismissed it far too quickly.

Astrid Jamar, a discussant who has also conducted research on gacaca in various capacities, raised a flag of caution in dismissing human rights organisations, namely Amnesty International and Human Rights Watch, given that their purpose is distinctly different from an entity such as Avocats sans Frontieres, an NGO tasked with advising the Rwandan government on the gacaca process. For instance, many of the procedural elements of regular courts were notably lacking from the trials carried out by gacaca courts. The fact that the panels of judges are selected via a majority vote in each community, rather than an objective selection of lawyers or trained legal professionals, raises severe questions about the impartiality of the entire process.

Travers McLeod, a discussant with an extensive background in both law and international relations, weighed in on this point by situating Rwanda in a comparative framework. He pointed out that Dr Clark only uses the phrase “rule of law” in the very last paragraph of the book, a fact which emphasises the hybridity and dynamism of gacaca, a process entirely unique to Rwanda. As such, traditional legal vocabulary is not as useful in assessing the success of the trials as it might be elsewhere.  His one worry, however, was that the potential partiality that derives from the structure of gacaca has made it impossible to prosecute members of the ruling Rwandan Patriotic Front (RPF), thus limiting the legal reach of the courts.

Can we achieve real justice, whatever this might mean in the Rwandan context, without this impartiality held so dear by those who promote processes of transitional justice? Based on his observations over the entire process of gacaca, Dr Clark’s answer is a resounding yes. Most striking from his passionate presentation was his understanding that for Rwandans, gacaca has been an incredibly intimate process, one which constantly re-opens wounds of the past in search of some measure of both justice and reconciliation, often an elusive combination. After all, given the scale and the scope of the genocide, simply imprisoning every perpetrator would tear the already shaky foundations of Rwandan society apart. On the other hand, lighter sentences meant that many Rwandans continue to live next door to those who were responsible for killing family and community members. Nonetheless, a short response by Frank Rusagara, a former Rwandan General and author of The Resilience of a Nation: A Military History of Rwanda, re-asserted the fact that gacaca is a process from the Rwandans and for the Rwandans, and has connotations far beyond the legal; gacaca is practiced everyday by Rwandans across all communities in an attempt to resume a normal way of life. Indeed, it is only through a collective ownership of the tragic that Rwanda can truly leave the genocide behind.

Review by Alex Martins, MPhil Politics Candidate, Oxford University and OCAF Co-Founder.

Accusing Paul Kagame’s Rwanda of Genocide: from one set of dangerous assumptions to another?

Many people welcomed the publishing of the UN Mapping Report detailing crimes that took place in the DRC following the end of the Rwandan genocide, however given both its methodology and content, the Report in fact makes it less likely that criminals responsible for undoubted atrocities will be prosecuted.

Harry Verhoeven of Oxford University and OCAF co-founder expresses these views in “UN Report on Rwanda genocide threatens stability in Central Africa“, an opinion piece written for the Christian Science Monitor.