A new report has rekindled debate on whether the Rwandan government "betrayed" women who were raped during the 1994 genocide by letting community-based gacaca courts process their cases.
The Human Rights Watch (HRW) report marks one of the first attempts by an advocacy group to assess how the gacaca handled rape cases, which were transferred from conventional courts in 2008. (Gacaca means "grass" in Kinyarwanda, symbolizing a gathering place and referring to a system of public conflict resolution once reserved for minor civil disputes.)
Because of the community-based nature of gacaca, HRW says the privacy of rape survivors was "seriously compromised" by the transfer. The government, however, argues that appropriate safeguards were put in place to keep testimony confidential, and stresses that gacaca was the only means of administering justice in a timely fashion. Some Rwandan civil society groups share this view.
Philip Clark, political scientist and author of The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers (2010), said the resource constraints placed on conventional courts, which, before 2008 had failed to take action on genocide-related rape cases, made gacaca "the most obvious process to deal with those particular crimes". Still, he conceded that some problems had emerged.
More than 800,000 Tutsis and moderate Hutus perished in the genocide. The resulting arrests saw dramatic prison overcrowding: by 1998, 130,000 detainees were being held in a system designed for just 12,000.
The government in 2002 formally launched trials by gacaca, which were to be adjudicated by ordinary citizens. The cases of so-called "category 1" suspects, including rapists, as well as organizers and leaders of the genocide, remained in conventional courts until 2008. (Those deemed "most responsible" for the genocide were processed by the UN-backed International Criminal Tribunal for Rwanda in Arusha, Tanzania.)
By 2008, gacaca had tried hundreds of thousands of genocide cases, moving at a much faster pace than conventional courts, which tried just 222 between January 2005 and March 2008. In May that year, parliament transferred most remaining "category 1" genocide cases to gacaca, including at least 8,000 rape or sexual violence cases.
One official told HRW this decision was made in response to pleas from rape victims, who said they were dying of HIV/AIDS and wanted to see their assailants brought to trial.
Denis Bikesha, director of training, mobilization and sensitization in the National Service of Gacaca Jurisdictions, also stressed the relative speed of gacaca. "This was done in a bid to render timely justice to many, as before 2008 the rape cases were mostly pending in the Prosecution Authority," he told IRIN.
Rape survivors feared their identities would be revealed to their communities despite the fact that testimony in rape cases was to be heard behind closed doorsBut Leslie Haskell, author of the HRW report, noted that of the more than 20 rape survivors interviewed for the report, only one expressed a preference for gacaca over conventional courts. For others, who said they had been reluctant to come forward and file complaints but had done so because they believed conventional courts would protect their privacy, the transfer to gacaca "took them by surprise and left some feeling betrayed", the report states.
Rape survivors feared their identities would be revealed to their communities despite the fact that testimony in rape cases was to be heard behind closed doors, Haskell said. Because trials were held near administrative offices or schools in many cases, third parties would still be able to see a complainant enter a room with a judge and her alleged assailant. "You'd still know it was a rape case, but if all went well you wouldn't know what the details were," Haskell said.
The report states that "a few" of the women - some of whom had not told their families about the rape and did not want the community to know - decided to drop their cases after they were transferred to gacaca.
However, the report also notes that provisions were put in place to make it easier for rape survivors to testify: they were able to challenge judges they believed were biased or would not respect their privacy; and they could write letters detailing their allegations rather than appearing in person.
Bikesha highlighted these "safeguards" in claiming that the rape cases had been "really successful", adding that "whoever dares to reveal secrets" could be subject to "punishment". (He did not specify what that punishment might be.)
According to the report, the process of bringing rape cases before gacaca ended up being "less traumatic" than many survivors expected. "For most women, the experience of appearing in gacaca was emotionally difficult, and more difficult than they believed a conventional court trial would have been, but their cases proceeded relatively smoothly," the report states.
However, the report does cite some cases in which privacy appeared to have been compromised, with reports of intimidation and accusations of false testimony.
Clark, who observed many gacaca trials as part of his research, said "maintaining privacy was a real problem. A lot of this has to do with the closeness of Rwandan communities. It's almost impossible for any legal process to hide people's identities. People know each other. They're very aware when people are summoned to give testimony."
Despite reports of intimidation, Jane Abatoni Gatete, former executive secretary of the Rwandan Association of Trauma Counsellors, who now works independently with trauma victims, including some who have brought rape cases before gacaca, said she believed the system had generally served survivors well.
"Steps were put in place by the government, and they were acting to make sure those women were protected and maybe counselled and advised to come forward and give the testimony," she said. "If they didn't then maybe their cases would not have been heard."
Beyond the privacy rights of rape survivors, the HRW report also raises concerns about the fair trial rights of the accused.
Because gacaca does not involve lawyers, the process has long been open to criticism that suspects are unable to prepare an adequate defence. One of the government's justifications for not involving lawyers - in addition to the fact that there simply were not enough - is that community participation negated the need for them. If a witness lied, for instance, community members could speak out.
With rape cases being held in camera, however, the community cannot participate at all, Haskell noted.
"It was sort of a Catch-22, right? The gacaca system was built on this idea of public participation to call out prejudicial partiality or lies on account of any of the parties who were testifying," Haskell said. "The problem with that is because they are behind closed doors, because there's no public participation, because there's no monitoring by rights groups, it could've been easier to manipulate."
Clark said Rwandans had been taken aback by this feature of the rape cases. "There was a great deal of frustration at the community level that people had had very public hearings for all of the previous crimes, and then suddenly these very contentious rape cases were being held behind close doors where the community couldn't hear and couldn't participate," he said.
But he added that, in light of HRW's concerns about privacy, this criticism struck him as "a bit rich. I have to say on that particular point it does look like Human Rights Watch are having their cake and eating it, too," he said. "They can hardly criticize open rape cases and then turn around and criticize the fact that they're being held behind closed doors."
The Rwandan government has said that there are no more than 100 gacaca cases remaining, and Clark said he expected the government, which has missed previous deadlines, to stick to the current plan of shutting down the system by December.
If gacaca does end this year, Clark said its record on sexual violence cases would be decidedly mixed, but that the decision to transfer them from conventional courts would also be remembered as "inevitable. I really don't think there was any other way the government could have done it," he said.