"…if we all together support Gacaca Courts, we’ll have shown the love we have for our country and Rwandans. Justice that reconciles Rwandans will be a fertile ground for unity and a foundation for development"1...
His Excellency Paul KAGAME President of the Republic of Rwanda
1 Speech by His Excellency Paul KAGAME, President of the Republic of Rwanda launching Gacaca Courts activities on the 18th June 2002.
1 ACKNOWLEDGEMENTS
We would like to express our heartfelt thanks to the various stakeholders whose combined efforts contributed to the indisputable achievements of Gacaca Courts.
First of all, we thank the Government of Rwanda whose concern for rendering justice and rebuilding the country led to initiation of Gacaca Courts system. The success of the courts has been acclaimed and should be a source of hope and reassurance to the people of Rwanda. Our special thanks go to “Inyangamugayo” judges, for the devotion, courage and patriotic zeal with which they carried out their mission. . Our thanks also go to our partners in Gacaca Courts system and the staff of the National Service of Gacaca Courts, who ensured the monitoring, supervision and coordination of all the activities of the Courts.
Last but not least, we thank all those who, in one way or another, have contributed to the success of Gacaca Courts.
Kigali, /…../….
Domitilla MUKANTAGANZWA Executive Secretary National Service of Gacaca Courts
2 ABBREVIATIONS
Art.: Article RPF : Rwanda Patriotic Front ASF: Avocats Sans Frontière BTC: Belgian Technical Cooperation D.L: Decree – Law HRW: Human Rights Watch ICG: International Crisis Group ICTR: International Criminal Tribunal for Rwanda IRC: International Rescue Committee LIPRODHOR: Ligue Rwandaise pour la Promotion et la Défense des Droits de l’Homme MDR : Mouvement Démocratique Républicain MINALOC: Ministry of Local Government MRND: Mouvement Révolutionaire National pour le Dévelopement MTN: Mobile Telecommunication Network NCHR: National Commission of Human Rights NSGC: National Service of Gacaca Courts NUR: National University of Rwanda O.G.R.R: Official Gazette of the Republic of Rwanda PAPG: Projet d’Appui de la société civile au Processus Gacaca PRI: Penal Reform International RCS: Rwanda Correctional Service RTLM: Radio Télévision Libre des Milles Collines SFB: School of Finance and Banking TIG: Travaux d’Intérêt Général UNAMIR : United Nation Mission in Rwanda U.N: United Nations
3 LIST OF TABLES Table 1: Situation of the judicial staff from 1994 to 2002 Table 2: Categories and corresponding sentences Table 3: Judgements made by the First Instance Courts between 1996 and 2000 in terms of percentage Table 4: Categories and their corresponding sentences, Organic Law of 2001 Table 5: Sentences applicable to minors according to Organic Law of 2001 Table 6: Classification of “Inyangamugayo” on gender basis Table 7: Achievements of the data collection phase Table 8: Crimes and their punishment according to the Organic law of 2004 Table 9: Crimes and their corresponding punishments applied on minors according to the Organic law of 2004. Table 10: Topics covered during the Inyangamugayo training Table 11: The situation of trials from 10/03/2005 to 14/07/2006 in the pilot sectors Table 12: The number of individuals put on the list of suspects Table 13: Places where data collection was repeated Table 14: Trial progress from 1st March 2007 to 31st December 2007 Table 15: The categories and applicable sentences as provided for by the Organic Law of 2007 Table 16: Sentences applicable to minors, Organic Law of 2007 Table 17: The categories and their corresponding sentences according to the Organic Law of 2008 Table 18: The sentences applicable to minors that were more than fourteen (14) but less than eighteen (18) years of age when the crimes were committed Tableau 19: The Closure schedule of Gacaca courts activities at the sector level
4 TABLE OF CONTENTS
ACKNOWLEDGEMENTS ...... 2
ABBREVIATIONS ...... 3
TABLE OF CONTENTS ...... 5
INTRODUCTION...... 11
PART ONE: ORIGIN AND ESTABLISHMENT OF GACACA COURTS ...... 13
Chapter One: CHALLENGES OF JUSTICE IN THE AFTERMATH OF GENOCIDE AND THE SOLUTIONS ADOPTED ...... 13
Section One: Challenges of justice in the aftermath of Genocide ...... 13
§1. Large numbers of suspects ...... 13
§ 2. Destruction of the judicial system ...... 14
Section 2: Solutions adopted ...... 14
§1. Restoration of the judicial system ...... 15
§2. Organic law no 08/96 of 30/08/1996 ...... 15
A. Categories and sentences provided for by the Organic Law of 1996 ...... 16
B. Procedure of guilty plea, confession, repentance and apologies ...... 20
C. The principle of “double qualification” according to the Organic Law of 1996 ...... 21
§3. The progress made ...... 21
§4. Establishment of the International Criminal Tribunal for Rwanda (ICTR) ...... 23
Chapter II. ORIGIN AND INSTITUTIONALISATION OF GACACA COURTS...... 25
Section One. Consultative meetings at Village Urugwiro ...... 25
§1. Draft law ...... 27
§2. Sensitisation ...... 28
Section 2: Establishment of Gacaca Courts...... 29
§1 Organic Law n˚ 40/2000 of 26th January 2001, governing the creation of Gacaca Courts ...... 29
5 A. Organisation and functioning of Gacaca Courts ...... 30
1. Organs of Gacaca Courts ...... 30
a) The General Assembly ...... 30
b) The Seat ...... 31
c) The Coordination Committee ...... 34
2. Duties of Gacaca Courts ...... 34
a) The Cell Gacaca Court ...... 34
b) The Gacaca Court of the Sector, District or Town and that of the Province or Kigali City ...... 35
B. The Competence of Gacaca Courts ...... 36
1. Jurisdiction ...... 36
a) Gacaca Court of the Cell ...... 36
b) Gacaca Court of the Sector ...... 36
c) Gacaca Court of the District or Town ...... 36
d) Gacaca Court of the Province or Kigali City ...... 36
2. Territorial Jurisdiction ...... 36
3. Crimes and applicable sentences according to the Organic Law of 2001 ...... 37
§.2 Creation of the Department of Gacaca Courts within the Supreme Court ...... 42
A. Elections of “Inyangamugayo” judges ...... 43
B. Training of 2002 ...... 46
1. Training of trainers ...... 47
2. The training of “Inyangamugayo” judges ...... 47
Part II: PILOT PHASE ...... 49
Chapter One: Data collection ...... 49
Section One. The progress of data collection, its results and lessons learnt ...... 52
§1. The progress of data collection ...... 52
6 §2. Achievements of the data collection phase ...... 54
§3. Lessons learnt...... 55
Section 2: Reorganisation of the functioning of Gacaca Courts ...... 56
§1. National Service of Gacaca Courts ...... 56
§2. Improvement regarding data collection ...... 57
§3. Changes made on the functioning of Gacaca Courts; ...... 59
A. Organic Law no 16/2004 of 19 June 2004 governing the organisation, jurisdiction and functioning of Gacaca Courts ...... 59
1. Changes relating to organisation and jurisdiction ...... 59
2. Changes related to categorisation ...... 60
3. The training of 2004 on the Organic Law no 16/2004 ...... 69
B. The preparation of “Inyangamugayo” for the trial phase ...... 70
Chapter II: THE TRIAL PHASE ...... 71
Section One. The common procedure in Gacaca hearings ...... 71
Section 2: The appeal before Gacaca courts...... 72
§1. Objection ...... 73
§2. Appeal ...... 73
§3. Review of judgement ...... 73
Section 3: Achievements of Gacaca courts, challenges met and adopted strategies ...... 74
§1. Achievements of Gacaca Courts ...... 74
§2. Challenges identified during the pilot phase ...... 75
§3. Strategies set up: ...... 76
PART III: GACACA COURTS PROCESS AT NATIONAL LEVEL ...... 77
Chapter One: DATA COLLECTION PHASE AT NATIONAL LEVEL ...... 77
Section One: Validation of information ...... 78
7 Section 2: Drafting the list of suspects ...... 78
Chapter II: TRIALS AT NATIONAL LEVEL ...... 81
Section one: The 2006 training on trial procedure ...... 82
A. The training of trainers ...... 82
B. The training of “Inyangamugayo” judges ...... 82
Section 2: Trials’ progress and achieved results ...... 82
§1. Particularities of 3rd category trials ...... 84
§2. Organic Law no 28/2006 of 27/06/2006 setting up the first amendment of Organic Law of 2004 ... 85
§3. Organic Law no 10/2007 of 01/03/2007 amending Organic Law of 2004 as modified and complemented to date ...... 86
A. The creation of several Benches within the Gacaca Courts ...... 86
B. The re-categorisation according to Organic Law no 10/2007 of March 1st, 2007 ...... 88
C. Crimes and penalties according to Organic Law of 2007 ...... 90
D. Review of Genocide cases judgments ...... 111
E. Implementation of the Organic Law of 2007 ...... 113
Section 3: Amendment of 19/05/2008 on the Organic Law of 2004 ...... 114
§1. Modalities to speed up first category trials ...... 114
A. Crimes and their sentences according to the Organic Law of 2008 ...... 115
B. Special consideration on the crime of rape or sexual torture ...... 137
§2. Genocide files pending before Ordinary and Military Courts ...... 139
§3. Execution of the prison sentence to persons who pleaded guilty ...... 140
§4. Prosecution and trial of crimes of Genocide and other crimes against humanity after winding up and closure of Gacaca Courts activities ...... 141
Section 4: Motivation of “inyangamugayo” ...... 142
Section 5. The closure of Gacaca courts activities ...... 143
§1. Winding up trials ...... 143
8 §2. Gacaca Documentation Centre ...... 144
§3. The closure of Gacaca Courts activities at the Sector level ...... 145
Section 6: The role of partners in Gacaca courts process ...... 160
CHAPITER III: COMMENTS ON CRITICISMS MADE ABOUT GACACA COURTS AND HIGHLIGHTS OF THEIR ACHIEVEMENTS ...... 162
Section one: Some of the criticisms of the Gacaca courts process and responses ...... 162
§ 1. Gacaca Courts did not observe the right to defence and legal assistance ...... 162
§ 2. People were obliged to take part in the Gacaca Courts proceedings ...... 164
§ 3. Gacaca Courts did not try crimes committed by former soldiers of RPF Inkotanyi ...... 166
§ 5. Gacaca Courts were used to serve a political agenda ...... 168
§ 5. The fact that Inyangamugayo Judges worked on volunteer basis was a reason to take bribes ...... 170
§ 6. Lack of Motivation of Judgements ...... 171
§ 7. Some Inyangamugayo Judges suspected of involvement in genocide ...... 173
§ 8. Speeding up Gacaca Courts activities may have led to hasty judgements ...... 173
§ 10. Gacaca courts did not compensate genocide survivors ...... 177
§ 11. Other acts that were not punished by Gacaca Courts ...... 177
A. Failure to assist those in danger ...... 178
B. Presence at roadblocks where no crimes were committed ...... 179
C. Participation in night patrols during the Genocide ...... 179
D. Attendance of meetings advocating the extermination of the Tutsi ...... 180
E. Reception of killing weapons ...... 180
F. Criminal acts committed under irresistible compulsion ...... 181
§12 Inyangamugayo Judges with no legal background ...... 182
§ 13. The closure of Gacaca Courts was postponed many times ...... 183
§ 14. The Organic Law governing Gacaca Courts was amended many times ...... 186
9 § 15. Data Collection did not reveal complete information on the Genocide ...... 187
§ 16. The Gacaca Courts process is justice of the victor ...... 188
Section 2: Examples of inhuman cruelty during the genocide ...... 191
A. Cannibalism ...... 191
B. Acts of horror ...... 192
C. Competition and Notoriety in killing ...... 193
D. Dishumanizing acts on dead bodies ...... 194
E. Rape and sexual torture ...... 195
Section 3: Some Gacaca cases that generated controversy ...... 196
§ 1. Cases that generated controversy ...... 196
§ 2. Case files that were transferred by Gacaca Courts ...... 230
§ 3. Suspected individuals for whom no case files were compiled ...... 234
Section 4: Some of the outstanding values highlighted during the Gacaca courts process 236
§ 1. Self-confidence and hope ...... 237
§ 2. Trying a huge number of genocide suspects within reasonable time ...... 238
§ 3. Lessons learnt from Gacaca on human rights ...... 239
§ 4. Patriotism ...... 240
§ 5. The courage to hide those who were being hunted during the genocide ...... 242
§ 5. The courage of survivors to forgive those who committed genocide and inhuman crimes against them...... 245
§ 6. Building the nation through community work in lieu of imprisonment ...... 246
§ 7. Support to national unity and reconciliation ...... 247
CONCLUSION ...... 251
BIBLIOGRAPHY ...... 255
10 INTRODUCTION
Gacaca Courts originate from the traditional system of conflict resolution called GACACA. The system dealt mainly with civil and social conflicts between members of the community. It referred to a physical green space where people used to meet. It was especially used by elders in the community, individuals well-known for their integrity and wisdom, to discuss and resolve problems and conflicts within the community. Among the measures taken against an offender, traditional Gacaca called upon the family of the latter to reconcile with the offended family. Likewise, the Rwandan community after the Genocide against the Tutsi found it wise to use this system for dealing with Genocide cases as well as rebuilding the social fabric which had been completely destroyed, a task that was practically impossible to carry out using the classical system of justice.
The Genocide against the TUTSI in Rwanda has important particularities compared to other genocides undergone by humankind. Apart from direct involvement of the state machinery and a large proportion of the political class, the Genocide was perpetrated in a climate of ethnic polarisation deliberately provoked by its masterminds.
The rapidity of its execution, the extreme nature of criminality, the massive participation of citizens of all ages and socio-professional conditions, the presence of the international community representatives and military contingents as well as the media all emphasise the uniqueness of this Genocide.
The Genocide caused massive loss of human lives (more than one million deaths), many refugees, near-total destruction of infrastructure, a huge number of vulnerable people (widows, widowers, orphans, children as heads of households, homeless individuals, etc). There were very many cases of trauma arising from the Genocide and other crimes against humanity as well as a large number of detainees suspected of having perpetrated the Genocide. The judicial system had also completely collapsed.
11
Illustration photo of bodies of victims of the Genocide against the TUTSI
In this book, the first part puts emphasis on exposing the extent and complexity of crimes committed and the glaring inadequacy of the classical justice system to deal with the vast number of Genocide cases to be handled. On the other hand, we shall focus on the Gacaca system of justice, a specific and original solution provided by Rwandan culture to serve justice and reconciliation purposes. The second part puts emphasis on the beginning and achievements of the pilot phase of Gacaca Courts. Finally, the last part consists of the launching the activities of Gacaca Courts’ at national level and the results obtained.
12 PART ONE: ORIGIN AND ESTABLISHMENT OF GACACA COURTS
Before discussing the origin and establishment of Gacaca Courts, it is important to mention the efforts deployed by the Rwanda Government to resolve Genocide cases and other crimes against humanity and overcome the challenges of justice in the aftermath of Genocide.
Chapter One: CHALLENGES OF JUSTICE IN THE AFTERMATH OF GENOCIDE AND THE SOLUTIONS ADOPTED The 1994 Genocide against the Tutsi in Rwanda was a result of the culture of institutionalised crime based on ethnic discrimination, dating back to 1959. However, no one could have foreseen the upsurge of mass killings or imagined that they would culminate into Genocide. The general state of impunity reached the extent of convincing one part of the population that any crime could be committed with impunity in the name of ethnic majority. It was therefore necessary to break this cycle of impunity by prosecuting the perpetrators of this crime.
Section One: Challenges of justice in the aftermath of Genocide
The Government of National Unity that was put in place on the 19th July 1994 had many concerns but among the most urgent was to render justice to both victims and detained suspects. This proved to be difficult considering the huge number of suspects and the almost complete destruction of the judicial system.
§1. Large numbers of suspects After Genocide, more than 120,000 individuals were arrested and provisionally detained for the crime of Genocide and other crimes against humanity. They were awaiting trial, yet the judicial system had been completely destroyed.
General amnesty as a solution was rejected before hand, and it was admitted both by the Government of Rwanda and the International Community that all the perpetrators of Genocide and other crimes against humanity should be prosecuted and judged within a reasonable time.
13 This was a major challenge especially because the number of detained suspects kept increasing very fast.
How is it possible to fight against impunity where criminals are so many? How is it possible to reach the planners who have managed to settle abroad, most of the time with the complicity of some leaders in the host countries? The Government of National Unity was committed to rebuilding the judicial system as quickly as possible in order to deal with these challenges.
§ 2. Destruction of the judicial system The destruction of the judicial system was due to numerous reasons namely: Lack of qualified staff; Interference of the executive power in the judiciary Exceptionally difficult working conditions, etc. The judicial system was already weak before 1994 and its restoration turned out to be complicated and could hardly address the situation after Genocide.
The judicial system was completely destroyed through the killing of judges and administrative staff, the escape of others usually due to their involvement in acts of Genocide and other crimes against humanity, the disappearance or destruction of working materials and equipment, loss of archives, collapse of the state machinery and judicial police. Nevertheless, everyone agrees that without justice, reconciliation among Rwandans was impossible. Thus, the Government of National Unity was committed to finding possible solutions at both the national and international level.
Section 2: Solutions adopted
Faced with the various challenges mentioned above, the Government of Rwanda did everything possible to restore and strengthen the judicial system. A legal framework was also put in place to prosecute and try the perpetrators of Genocide and other crimes against humanity.
14 §1. Restoration of the judicial system Restoration of the judicial system began with recruitment and intensive training for the necessary staff.
Table 1: Situation of the judicial staff from 1994 to 2002 The Judicial and The situation in The situation in Prosecution staff December 1994 December 2002 Judges/Magistrates 244 700 Prosecutors 12 246 Court Clerks 59 325 Secretaries in the 56 123 Prosecution Office Source: The achievements of the Government of National Unity in 2002
Despite the efforts made, justice was still a major concern of the Government of National Unity. In order to accelerate prosecution of the judicial files, the Ministry of Justice created, in the first place, commissions charged with sorting files. These commissions were later replaced by mobile groups of Prosecutors who examined and prepared Genocide files for the trial phase.
§2. Organic law no 08/96 of 30/08/1996 Among the challenges regarding handling Genocide cases, there was also lack of the necessary legal framework to prosecute and try individuals suspected of having participated in Genocide and other crimes against humanity. Even though Rwanda had ratified various international conventions on Genocide, there was no domestic law punishing it.
Prior to the draft law, there was an international seminar that paved the way and proposed major guidelines that may have inspired the Rwandan legislature. The seminar organised by the Rwandan Government, took place from the 31st October to the 3rd November 1995 in Kigali. Its topic was “Fight against impunity: Dialogue for National reconciliation”. Participants included expert-witnesses, other experts, researchers and human rights activists.
15 The main objective of the seminar was to explore pertinent strategies for the particular Rwandan context that would allow easy prosecution of the individuals that participated in Genocide and other crimes against humanity. They came up with recommendations that favoured the drafting of special laws creating specialised chambers within the existing Courts of First Instance. The chambers were commissioned with trying Genocide cases and other crimes against humanity. The Government of Rwanda promulgated the Organic Law no 08/96 of 30/8/1996 governing the prosecution of Genocide and other crimes against humanity committed since the 1st October 19902 as a remedy to this obstacle that hindered all possibility of prosecuting the Genocide perpetrators at national level.
This law had two essential innovations compared to international human rights protection tools. First of all, it defined suspects into four categories. Furthermore, it provided for the possibility of reducing punishments of all perpetrators of Genocide who pleaded guilty except those of the first category. It is worth mentioning that in punishing acts of Genocide, the legislator referred to the principle of ‘double qualification’ that facilitated application of both the Organic Law no 08/96 and the Penal Code3. As a matter of fact, apart from Genocide planning, all acts that constitute a crime of Genocide are provided for and punishable by the Rwandan Penal Code.
A. Categories and sentences provided for by the Organic Law of 1996
In its article 2, the first category includes: the planners, organisers, instigators, supervisors and ringleaders of the Genocide; leaders at the National, Prefectural, Communal, Sector or Cell levels that participated in Genocide; notorious criminals and those who committed sexual torture. The second category concerns those who committed or were accomplices of acts of murder. The third category is composed of those who committed other serious violence to individuals. The fourth category includes those who inflicted damage to property.
2 Organic Law no 08/96 of 30/8/1996 governing the prosecution of Genocide crimes and other crimes against humanity committed since the 1st October 1990, O.G. no 17, 1996.
3 Regarding this matter, see article 1 of the Organic law no 8/96.
16 Table 2: Categories and corresponding sentences Category Charges Sentences according to the Organic law of 1996
1° a) Planners, organisers, Capital punishment (art 14) as well as instigators, supervisors and total and perpetual withdrawal of civic ringleaders of the genocide rights (Article17) or crimes against humanity, b) Leaders, at the National, Prefecture, Commune, Sector and Cell level, in political parties, army, religious denominations or militia, that have committed these offences or encouraged other people to commit them, c) A well-known murderer; d) A person who committed sexual torture.
Those who did not plead guilty or whose guilty plea was rejected; Those who pleaded guilty before being prosecuted; Those who pleaded guilty after being prosecuted. 2° Perpetrators, co-perpetrators or Life imprisonment (Article 14) accomplices of murder or serious 1° perpetual loss of the following civil violence against individuals, rights: causing death. a. to vote; Those who did not plead guilty or b. to be elected; whose guilty plea was not c. to be an expert, to be a witness in
17 accepted the rulings and trials, except in case of assisting minor investigations; d. to possess and carry fire arms e. to serve in the armed forces; f. to serve in the Police; g. to be in public service; h. To head a school or to be a teacher. In general the loss of all civil and political rights and the rights to be decorated with ranks and medals (Article17). Those who pleaded guilty after 12 to15 years of Imprisonment (art 16) 1° being prosecuted perpetual loss of the following civil rights: a. to vote; b. to be elected; c. to be an expert, witness in the rulings and trials, except in case of assisting minor investigations; d. to possess and carry fire arms; e. to serve in the armed forces; f. to serve in the police; g. to be in the public service; h. To head a school or to be a teacher. In general the loss of all civil and political rights and the rights to be decorated with ranks and medals (Article17). Those who pleaded guilty before 7 to 11 years of imprisonment (art 15) being prosecuted 1° perpetual loss of the following civil rights:
18 a. to vote; b. to be elected; c. to be an expert, witness in the rulings and trials, except in case of assisting minor investigations; d. to possess and carry fire arms; e. to serve in the armed forces; f. to serve in the police; g. to be in the public service; h. To head a school or to be a teacher. In general the loss of all civil and political rights and the rights to be decorated with ranks and medals (Article17). 3° Those who committed other Reference is made on the Penal Code serious violence to individuals. basing on the crime committed (Article 14). In addition to the sentences provided for by the Penal Code, the individual responsible for criminal acts is also deprived of civil rights as provided for by the law (art 17). Those who pleaded guilty after 1/2 of the sentence imposed by the Court being prosecuted (art 16, b) as well as loss of all civil rights provided for by the law. Those who pleaded guilty before 1/3 of the sentence imposed by the Court being prosecuted (art 15, b) as well as loss of all civil rights provided for by the law (Article 17). 4° Those who caused damages Amicable payments of civil damages, against property. failure to this, rules of criminal and civil liability are applied (art 14).
19 B. Procedure of guilty plea, confession, repentance and apologies
Special attention should be given to the procedure of confession, guilty plea, repentance and apologies. This procedure played a significant role in Genocide trials; its main objectives were the following: Revealing the truth about Genocide; Speeding up Genocide trials; Contributing to national reconciliation After publication of the Organic Law n° 08/96 of 30 August 1996, only a small number of detainees accepted to undertake the procedure of guilty plea and their sentences were reduced. There are various factors that can explain this situation; below are the most important ones: First of all, there was solidarity in denial of Genocide and conspiracy of silence among detainees. They pleaded innocent to all charges against them or thought that the extermination of Tutsi was justified. Furthermore, they pathetically believed they would be freed by their accomplices of the former regime.
It was certain they were encouraged or even harassed to remain silent by Genocide planners and suspects of the first category. As a matter of fact, the latter did not have the opportunity of sentence reduction resulting from guilty plea. There was also a conviction among prisoners and their relatives that they will be acquitted and released because of lack of sufficient proof in case they never revealed the truth about the crimes they committed.
Faced with this problem, the Government, through the Ministry of Justice organised a wide sensitisation campaign about guilty plea in all detention facilities. This made the prisoners more sensitive about guilty plea and its advantages. The remaining task was for the Courts to appreciate the quality of the confessions.
The trials started by December 1996, as time went on the judicial system was restored, the trials were well organised and the stakeholders were able to play their role efficiently. Nevertheless, the speed of the trials was not satisfying.
20 C. The principle of “double qualification” according to the Organic Law of 1996
This principle was explained by the fact that the Organic Law of 1996 punished the acts provided for and punishable by the Rwandan Criminal Code which constituted at the same time the crime of Genocide or other crimes against humanity. The first task for the prosecution was to qualify the crimes according to the Rwandan criminal Code, and then verify whether the crime constituted a crime of Genocide or crime against humanity as well. The two conditions had to be combined in order to apply the above mentioned organic law.
3. The progress made
Prior to the establishment of Gacaca Courts, the improvement made in the National judicial system is strongly commendable. The number of people tried was constantly increasing since 19974. By 31 December 2002, 8,363 individuals were tried for the crime of Genocide and other crimes against humanity. Egide Gatanazi was the first suspect to be tried for the crime of Genocide and other crimes against humanity and he was the head of Nyagakombe Cell, Nkungu Sector, and Rutonde Commune of Kibungo Prefecture, currently known as Rwamagana District of Eastern Province. This trial started on the 27th December 1996 at Cyasemakamba. On the 3rd January 1997, the specialised Chamber of the Kibungo First Instance Court declared him guilty and sentenced him to capital punishment.
From the legal point of view, Organic Law no 08/96 of 30 August 1996 was an important instrument for Judges and for all stakeholders involved in addressing the crime of Genocide.
However, the judges also referred to the fundamental law and international conventions as well as other domestic criminal laws. This reference to various legal texts favoured a fair trial. From the practice point of view, files that could be grouped together were given priority. The main idea was to group together the genocide perpetrators, co-perpetrators and accomplices in one trial. This idea did not come about by chance but was rather a result of the nature of the organised crimes committed by gangs.
4 LIPRODHOR, table no 2, 2003, p.11.
21
Socially, fair trials led to hope for the rebirth of more viable social relations. In prisons, the detainees mutually denounced themselves. Families of victims and suspects were giving charging or clearing testimonies, and were living in the same villages. It was a lesson of mutual acceptance and tolerance in divergent interests.
Table 3: Judgements made by the First Instance Courts between 1996 and 2000 in percentage Court Capital Life Other prison Acquitted (First punishment imprisonment sentences Instance 96-99 2000 96-99 2000 96-99 2000 96-99 2000 Courts) Kigali 19 7 58 45 7.6 22 15.2 22 Gitarama 3.0 2.9 10.7 19.1 42.2 34.9 37.9 10 Butare 37.7 17.7 30.7 36.1 21.9 25.8 9.6 14.3 Gikongoro 19.5 19.3 47.5 39.8 17.2 16.9 15.4 24 Cyangugu 15.2 10.6 36.4 39.2 29.8 38.5 18.5 7.4 Kibuye 16.3 7.1 31.1 24.7 36.6 23.9 15.8 11.5 Gisenyi 22.5 3.3 21.9 37.2 21.9 25.6 12.1 28.9 Ruhengeri 22.2 24.3 49.3 24.4 9.0 17.1 19.2 24.4 Byumba 14.4 6 44.2 41.4 23.2 27.4 19.0 23.2 Kibungo 9.5 2.5 8.8 5.8 73.1 82.8 8.0 6.5 Nyamata 15.7 9.7 18.1 22.6 43.6 53.1 21.1 17.6 Rushashi 3.5 0 30.1 15.5 36.7 48.8 29.5 32 Military 62.5 1 16.6 0 16.6 0 4.1 0 Tribunal Average 30.6 8.5 31 26.9 29.1 32.6 17.3 17.0 Source: LIPRODHOR, CDIPG, « Four years after the Genocide: The basis for Gacaca Courts, July 2001, p.8 ».
22 These results should be attributed to the experience acquired by the judges and steps made in progressive weakening of divisionism in Rwandan society. There has been remarkable and constant improvement in the administration of justice due to better understanding of the Organic Law of 1996. Considerable efforts were made to bring justice closer to the beneficiaries through creative judicial practices such as hearing cases at sites where crimes were committed, and developing human resource through continuous training sessions. The initiatives of Courts itinerancy had a positive impact. The moving of courts to the location where crimes had been committed had the advantage of hearing cases at the crime scene, which facilitated the parties’ access to justice. As for the judges, this procedure helped them to understand the facts much better, since they were on the field; they had the opportunity to gather more testimonies, examine the accuracy and truthfulness of witnesses as well as the claims of the parties to a case.
4. Establishment of the International Criminal Tribunal for Rwanda (ICTR) After having noticed the extent and nature of the killings, the Government of National Unity was committed to hold various campaigns to have the International community recognise that those killings were Genocide. Due to these campaigns, the international reporters and researchers came on field to see the reality of Genocide in Rwanda, despite the pressure of certain super and semi-super powers which minimised or denied it. More so, the Government carried out campaigns within the UN and the diplomatic corps accredited to Rwanda for the establishment of the ICTR to enable the prosecution of the perpetrators of Genocide scattered all over the world.
23
The Headquarters of ICTR, ARUSHA, TANZANIA.
The UN Security Council, after much hesitation, finally adopted, on 08th November, 1994 the Resolution n◦ 955 establishing the ICTR5. Therefore, the jurisdiction of ICTR is to prosecute the criminal suspects of Genocide and other crimes against humanity committed in Rwanda from the 1st January to December 31st 1994. The Government of Rwanda and some local human rights organisations argued that the period should cover much longer time since Genocide had been planned earlier than 1994.
The other critics rose another concern about the headquarters being established abroad (Arusha- Tanzania) while the crimes were committed in Rwanda and by Rwandans. On the other hand, the Rwandan legislature provided for capital punishment contrary to the ICTR which does not apply it in compliance with international laws. Since then, the relations between ICTR, the Government of Rwanda and the associations of Genocide survivors did not flourish very well and even encountering serious breakdown.
5 UNITED NATIONS, Security Council, and RESOLUTION n◦ 955 of 8 November 1994, http://www.un.org/french/documents/view_doc.asp?symbol=S/RES/955(1994) accessed, on the 15/08/2009.
24 Chapter II. ORIGIN AND INSTITUTIONALISATION OF GACACA COURTS
Although the Government of Rwanda had made remarkable efforts to rebuild the judicial system6, in the ordinary courts approach, it would take more than a century to try all the detainees. As it is said “justice delayed is justice denied”. It was therefore extremely necessary to look for an alternative.
Section One. Consultative meetings at Village Urugwiro
The idea to use the traditional Gacaca was initiated in 1998-1999 by the Government of Rwanda, during the consultation meetings convened by the President of the Republic, Pasteur Bizimungu and held at Village Urugwiro. In these meetings, more than one hundred individuals hailing from various backgrounds participated7. These meetings gathered leaders of political parties, ministers, members of Parliament, the President and Vice-Presidents of the Supreme Court, the Prefects of Prefectures and various officials invited to contribute to this important gathering. The consultations were held regularly on Saturdays from 9th May 1998 to 6th March 1999. These meetings came at the decisive moment to end the transition period (17th July 1999). Justice was among the issues discussed and the decision to resort to traditional Gacaca was taken during these National consultation meetings. As for Genocide trials and other crimes against humanity, debates were centred on three points namely: analysis of the problem at hand, looking for solutions and creating an ad hoc commission with the mandate to study the modalities of the functioning of traditional Gacaca.
The analysis of this problem put emphasis on the special nature of Genocide and other crimes against humanity and different levels of responsibilities; the Government and religious denominations being on the head. Regarding the procedure before specialised chambers; the limits of the mode of justice that was not fully addressing the situation were determined.
6 ICG, Five years after the genocide in Rwanda, justice in question », Raport, n˚ 1, 7 April 1999.
7 Repubulika y’u Rwanda, Perezidansi ya Repubulika, Raporo y’inama nyungurana bitekerezo yabereye muri Perezidansi ya Repubulika guhera mu kwezi kwa Gicurasi 1998 kugeza mu kwa Werurwe 1999 (Inyandiko irambuye), Kigali, Kanama, 1999.
25 It is under these conditions that recourse to the renovated Gacaca was suggested as a way out of the crisis. The pro- Gacaca argued that it was necessary to set up a system of justice in which the population would take part and reveal all the truth about the tragic events as well as punishing the criminals8.
In the meetings of Village Urugwiro, the announcement of recourse to Gacaca caused a strong controversy with similar arguments in favour or in disfavour. The supporters of applying traditional Gacaca recommended emphasis of the role of the population in settling Genocide cases. They also stressed the necessity to reconstruct the social fabric.
Those opponents to this solution, mainly lawyers and members of human rights organisations expressed their reservations as follows: the risk of trivializing Genocide, the risk of not conforming to the instruments of the protection of fundamental human rights governing such cases of violation, the capacity of the population who would sit to handle such particular complex crimes and inevitable conflict of interests. For them, the prosecution within the ordinary judicial system was the best alternative to fight against impunity and contribute to the reconciliation process. Although they were reluctant, they were still unable to propose an alternative solution to the shortcomings faced by the ordinary court system. Finally, the decision to resort to traditional Gacaca system that would be adapted according to the seriousness of the problem to be resolved was adopted.
In order to examine the modalities of implementation of the decision to resort to Gacaca, a commission composed of 13 members (mainly legal experts) and chaired by the Minister of Justice was put in place to study the following: the social and political consequences; the means to accelerate and improve the progress of the proceedings and examine the replacement of imprisonment penalties by community services.
8 Idem, pp.47-70.
26 1. Draft law
The report of the ad-hoc commission was presented for discussion to the public in form of a draft- law9. Consequently, the Ministry of Justice and Institutional Relations organised several seminars to finalise the draft law on Gacaca Courts and to explain the reasons that led the Government to choose the renovated Gacaca as a way to resolve Genocide cases. In this regard, a workshop took place at Murambi from 28th to 29th June, 1999 with an opening speech made by the President of the Republic of Rwanda. The participants were divided into three groups to discuss the organisation and functioning of Gacaca Courts.
For Gacaca Courts to operate harmoniously with the laws in force, modification of the existing laws or their articles was deemed necessary. The following laws were to be modified: The Arusha Peace Agreement on power sharing was to be modified to be in conformity with the idea of the creation of Gacaca Courts Department within the Supreme Court; The Organic Law no 08/96 of 30th August 1996 governing the prosecution of Genocide crimes and other crimes against humanity committed since the 1st October 1990. An Organic Law was to be enacted to replace it and create Gacaca Courts; The Decree-law n˚ 09/80 of 7th July 1980 governing the judicial organisation and competence was to be modified to add elements of organisation and jurisdiction of Gacaca Courts; The Decree-law n˚ 21/77 du 18th August 1977 establishing the Penal Code was to be modified to add the elements related to prison sentences to be replaced by community services; The Law of 23rd February 1963 relating to the organisation of the Supreme Court was to be amended to provide for the Department in charge of Gacaca Courts.
9 Ministère de la Justice, Juridictions Gacaca dans les procès de Génocide et des massacres qui ont eu lieu au Rwanda du 1er octobre 1990 au 31 décembre 1994, Kigali, juin, 1999.
27 2. Sensitisation
A consultation meeting intended for representatives of the international community was held at Hôtel des Milles Collines on 13th July 1999. The former Vice-President of the Republic of Rwanda and Minister of Defence Paul Kagame insisted on the importance of Gacaca Courts. A survey on the reactions of the populations of Mukingi, Tambwe, Gashora, Kanzenze and Ngenda was presented. Generally, the population was in favour of renovated Gacaca that would work independently from the Executive powers. Other workshops and meetings were organised to conrete the idea. This was done for better functioning of Gacaca as a solution to be adapted to a unique reality –the Genocide against the Tutsi. For instance, the workshop organised by the Centre for Conflict Management (CCM) of the National Univeristy of Rwanda (NUR) from 5th to 6th March 2000.
Furthermore, this sensitisation was carried out in various prisons of the country in order to explain the new approach for faster and efficient settling of Genocide cases. In Rilima prison of Kigali Ngali, where the sensitisation campaign was started, a committee of prisoners known as « Urumuri » was created on the 12th of May 1998 by the prisoners that had pleaded guilty for the crimes they committed. This was after understanding the advantages of Gacaca and served as a tool to sensitise other prisoners to confess their crimes.
Their work succeeded and many more prisoners confessed and their experience was shared with other prisoners. In Gitarama prison, an association called « Umucyo » was created with the same objectives as Rilima. The results were surprising. In this way, in Kigali Central Prison, testimonies were gathered with tables and description for two Communes of Kigali City. They provided lists of names of the individuals originating from the two Communes that had killed, wounded, raped and the list of the property that had been looted or damaged.
The detainees also drew a list of individuals that were suspected of having committed crimes and their geographical locations for those who were still alive and the names of the individuals that could give additional information. These documents would be very useful for Gacaca Courts.
28 Section 2: Establishment of Gacaca Courts
Organic Law n˚ 40/2000 of January 2001 governing the creation of Gacaca Courts and organizing the prosecution of Genocide crimes and other crimes against humanity committed between the October 1st 1990 and the December 31st 1994, established Gacaca Courts was adopted and published after many modifications made on the initial draft.10
The legislator had to consider modification of other legal texts that were already in force. We can name the following among others: the Decree-law n˚ 09/80 of 7th July 1980 governing the judicial organisation and jurisdiction, The Organic Law no 08/96 of 30th August 1996, The Decree-law n˚ 21/77 of 18th August 1977 establishing the Criminal Code of Rwanda and the Law of 23rd February 1963 relating to the Code of Criminal Procedure. The Organic Law referred also to the international legal texts that Rwanda had ratified. These include: the December 9th 1948 Convention relating to punishment of Genocide crimes, the Geneva Convention of 12th August 1949 relating to protection of civil rights during war times, the Convention of 26th November 1968 relating to the indivisibility of war crimes and other crimes against humanity11. The following goals were assigned to Gacaca Courts:
to reveal the truth about Genocide; to speed up the cases of Genocide and other crimes against humanity; to eradicate the culture of impunity; to strengthen unity and reconciliation among Rwandans; to prove the Rwandans’ capacity to solve their own problems.
1 Organic Law n˚ 40/2000 of 26th January 2001, governing the creation of Gacaca Courts This new organic law, to the contrary of other laws in criminal matters, defined also the organisation, functioning and jurisdiction of Gacaca Courts; the crimes and individuals prosecuted as well as applicable sentences.
10 Organic Law n˚ 40/2000 of 26 /01/2001, governing the creation of Gacaca Courts and organizing the prosecution of Genocide crimes and other crimes against humanity committed between the 1st October 1990 and the 31st December 1994 , published in the Official Gazette of the Republic of Rwanda, 15th March 2001, pp.66-98. 11 For more information, see the preamble of the above mentioned law no 40/2000 of 26/01/2001.
29 A. Organisation and functioning of Gacaca Courts
A Gacaca Court is created, in each Cell, Sector, District “or Town” and Province/Kigali City of the Republic of Rwanda. This court is responsible for handling crimes of Genocide and other crimes against humanity committed in Rwanda between October 1st, 1990 and December 31st, 1994 within the limits of the law.
1. Organs of Gacaca Courts Each Gacaca Court is comprised of a General Assembly, a Bench and a Coordination Committee.
a) The General Assembly
The General Assembly of each “Gacaca Court” holds an ordinary meeting once a month and an extraordinary session wherever it is required for the good functioning of the “Gacaca Court”. Decisions of the General Assembly are taken by consensus or, otherwise at the absolute majority of its members. This monthly meeting is aimed at evaluating the activities of the Bench and the coordinating committee. It is convened and chaired by the President of the Coordination Committee, of his own initiative or requested by at least a third of the members of the “Gacaca Court” Bench.
Where the President has a justified reason that hinders him from convening the General Assembly, the meeting can be convened by one of the Vice-Presidents. In case the President refuses to convene the General Assembly, the Bench of the Court can meet summoned by at least 7 of the members and the quorum is 14 members. They designate therefore one member that will summon the General Assembly.
Apart from the General Assembly of the Cell Gacaca Court called upon to give information regarding the perpetrators and victims of Genocide; where every inhabitant of the Cell should indicate the place where he or she resided before and during Genocide, the individual should also testify on what he or she knows about the crimes of Genocide committed in the Cell. The General Assemblies had the following main common attributions:
30 To present means of prosecution and defence evidence during the hearing; To elect members of the “Gacaca Court” Bench and their substitutes; Constituting necessary additional Benches within the “Gacaca Court” of the Cell; To elect the members of superior “Gacaca Courts”; To examine and adopt the report of activities done by the Coordination Committee.
b) The Seat
The members of the bench of “Gacaca Courts” commonly known as Inyangamugayo Judges are Rwandans of integrity elected by the General Assembly of the Cell in which they reside. In order to be considered a Rwandan person of integrity, the following conditions should be fulfilled: a) to have a good behaviour and morals; b) to be truthful; c) to be trustworthy; d) to be characterised by a spirit of sharing speech; e) not to have been sentenced to a penalty of at least 6 months’ imprisonment; f) not to have participated in perpetrating offences constituting the crime of Genocide or crimes against humanity; g) to be free from the spirit of sectarianism and discrimination.
Any person of integrity who is at least 21 years old can be elected a member of the “Gacaca Court” bench. Each bench of the Gacaca Court is composed of 19 individuals of integrity. Before exercising his or her duties, every member of the bench of the Gacaca Court shall take the following oath: “I, ...... in the name of God Almighty, solemnly swear to the Nation to honestly fulfil the mission entrusted to me by complying with the law; to always be guided by the spirit of impartiality and search for the truth, and to make justice triumph”.
31 The oath is taken before the General Assembly of the Gacaca Court. This act is immediately recorded and signed or fingerprinted by the concerned member of the Gacaca Court.
A member of the bench/seat of a “Gacaca Court” cannot seat in a case involving a person that he/she or his/her spouse is directly related up to the 2nd degree, an individual with whom there is a serious dispute or enmity, an individual with whom s/he has friendly relations, for whom he/she was guardian. . Any member concerned must decline to seat in the case. Otherwise, any person who knows about the existence of one of these causes should inform the seat before the hearings for immediate decision on the matter.
The following individuals cannot be elected as members of the Gacaca Court” of the Cell, or of the General Assembly of the Sector, District “or Town”, Province “or Kigali City”; any person exercising a political activity; any person in central or local decentralised Government; soldiers or police who are still in active service; career magistrates; members of political party leadership at national level. This ineligibility, however, is waived where the individual’s resignation from his or her position is confirmed. Leaders referred to are: the provincial governor, the Mayor of Kigali City, other members of the District Executive Committee, members of politico- administrative committees at Sector and Cell levels.
Anybody who appears on the list of genocide suspects of the 1st category cannot elect or be elected as a Gacaca Court judge. Any person elected as a member of the “Gacaca Court” shall be replaced for one of the following reasons: 1. absence from meeting sessions of Gacaca Courts organs for three (3) successive times without justified reasons; 2. to be convicted of a crime punishable by a sentence of at least six (6) months imprisonment; 3. divisionism; 4. to exercise one of the following activities: any person exercising a political activity; any person in charge of centralised or decentralised Government administration; soldiers or police who are still in active service; career magistrates; members of political party leadership at national level 5. having a serious disease likely to prevent him or her from participating in sessions of “Gacaca Courts” organs;
32 6. to do any act incompatible with the quality of a person of integrity; 7. resignation; 8. non-resident of the Cell, Sector, District or Province concerned; 9. death.
The decision to dismiss a member of the “Gacaca Court” who has been absent in its sessions, for divisionism and has done an act incompatible with the quality of a person of integrity, is made in writing, by members of the “Gacaca Court” bench. The member so dismissed is subject to an official warning before the General Assembly and cannot be elected again as a person of integrity.
The “Gacaca Court” bench can meet legitimately if at least 15 of its members are present. Where the quorum is not reached, the General Assembly designates another sufficient number of individuals of integrity to complete the quorum. This serves the same in case some or all members of the “Gacaca Court” bench are absent.
Gacaca Court hearings are public, except the hearing in camera decided by the Gacaca Court, or upon the request of any interested party and decided in a pronounced judgment for reasons of public order or good morals. Deliberations of judges are secret. The Bench of every “Gacaca Court” holds a hearing at least once per week, convened by the President, on his initiative or requested by at least 3 members of the Coordination Committee. The hearings begin from a half past 8 to 4 O’clock.
Days for hearings are fixed by the General Assembly of the “Gacaca Court” on consensus, failure to that; it is decided by the absolute majority of its members. If simple majority is not reached, a new vote is cast; each member of the “Gacaca Court” Bench having, however, to choose between the two positions that previously obtained more votes.
A judgement is rendered in public on the day fixed by the Court Bench. Judgements must be motivated. They are signed or fingerprinted by all members of the Court who seated in the proceedings and participated in deliberation.
33 c) The Coordination Committee
The Coordination Committee is composed of a President, first Vice-President, second Vice- President and two secretaries, all of whom must know how to read and write Kinyarwanda. Members of a “Gacaca Court” seat elect the Coordination Committee among themselves, with a simple majority.
The Coordination Committee of every “Gacaca Court” shall carry out the following functions: to convene, preside over meetings and coordinate activities of the Bench for the Gacaca Court as well its General Assembly, to register complaints, testimonies and evidences given by the population; to receive and record files for suspects answerable to “Gacaca Court”; to register appeals filed against judgements passed by “Gacaca Courts”; to forward files of judgements appealed against to Gacaca Courts of Appeal; to register decisions made by organs of the “Gacaca Court”; to prepare reports of activities of “Gacaca Courts”; to implement decisions of the General Assembly and those of the “Gacaca Court” Bench; to immediately transfer the report of activities approved by the General Assembly of the “Gacaca Court” to superior Gacaca Courts.
The Coordination Committee of the “Gacaca Court” meets as many times as possible, convened by its President, of his own initiative or requested by at least two members of the committee. In order to sit validly, the Coordination Committee should have at least three of its members present, of whom one is a secretary. Decisions are made by consensus. If there is no consensus, the matter is submitted to the “Gacaca Court” Bench.
2. Duties of Gacaca Courts
The law provides for specific duties for each Gacaca Court:
a) The Cell Gacaca Court
The Cell Gacaca Court exercises the following duties:
34 to make up a list of individuals: Who resided in the cell before and after Genocide; Suspected of having participated in Genocide; Victims and their damaged properties; to bring together the files forwarded by the Public Prosecution; to categorise suspects according to the provisions of this Organic Law; to try cases related to properties; to give a ruling on the disqualification of members of the Bench of Gacaca Court of the Cell; to receive confessions from individuals who participated in Genocide; to forward the files which are not in their jurisdiction to the competent Courts; to elect members of the Coordination Committee.
b) The Gacaca Court of the Sector, District or Town and that of the Province or Kigali City
The Gacaca Court Bench of the Sector, District or Town and that of the Province or Kigali City has the following duties among others: making investigations, if necessary, on testimonies given; to receive confessions from individuals who participated in genocide; to give a ruling on the disqualification of members of the Bench; To try cases falling under its jurisdiction, after making sure that suspects forwarded to it, have been categorised in conformity with the alleged offences, examining appeals against judgements passed by Gacaca Courts of the inferior level within its jurisdiction; electing members of the Coordination Committee Examining reports of activities from the lower Gacaca Courts of its jurisdiction.
35 B. The Competence of Gacaca Courts
1. Jurisdiction
a) Gacaca Court of the Cell The Cell Gacaca Court deals, at first level, with crimes of category 4. It deals also with objections filed against the sentence it has pronounced in the absence of the accused. The Cell Gacaca Court then categorizes alleged perpetrators of Genocide.
b) Gacaca Court of the Sector The Sector Gacaca Court deals, at first level, with defendants whose offences fall into the third category and opposition made against sentences pronounced in the absence of the accused.
c) Gacaca Court of the District or Town The District or Town Gacaca Court deals with crimes of category 2, appeals filed against judgments rendered at first level or on opposition by Sector Gacaca Courts under its jurisdiction filed against the judgments that were rendered in absence of the accused.
d) Gacaca Court of the Province or Kigali City The Gacaca Court of the Province or Kigali City deals with appeals of judgments rendered at the first level or on objection by Gacaca Courts of the District or Towns under its jurisdiction filed against the judgments that were rendered in absence of the accused.
2. Territorial Jurisdiction It is the Gacaca Court of the area where a crime has been committed that is competent to deal with it. The jurisdiction for the Cell Gacaca Court is the administrative Cell; The jurisdiction for the Sector Gacaca Court is the administrative Sector; The jurisdiction for the District or town Gacaca Court is the District or Town; The jurisdiction of the Province or Kigali City Gacaca Court is the Province or Kigali City
36 Where a suspect is charged of crimes committed in different areas, the trial is adjourned. The Court to which a case has been filed will immediately inform the Department of Gacaca Courts in the Supreme Court, which will in turn inform the various concerned Cell Gacaca Courts instructing them to provide prosecution or defence elements of proof.
The Department of Gacaca Courts in the Supreme Court transfers the received files to the concerned Court to take action. The court proceeds to a new categorisation of suspects basing on supplementary elements gathered and, if necessary, transfers the file to the competent Court.
3. Crimes and applicable sentences according to the Organic Law of 2001
This law considered the offences constituting the crime of Genocide and other crimes against humanity as provided for by the Organic Law no 08/96 of 30th August 1996.
Table 4: Categories and their corresponding sentences
Category Charges Sentences according to the Organic law of 2001 1° a) Planners, organisers, Capital punishment or life instigators, supervisors and imprisonment (art 68) + perpetual ringleaders of the Genocide or withdrawal of all civil rights crimes against humanity, (Article72). b) Leaders, at National level, at Prefecture level or Kigali City, Town Commune, in political parties, army, religious denominations or in militia, has committed these offences or encouraged other people to commit them, c) The well known murderer who distinguished himself or herself in the location where he
37 or she lived or wherever he or she passed, because of the zeal which characterised him or her in killings or excessive wickedness with which they were carried out, d) A person who committed rape or sexual torture. Those who did not plead guilty or whose guilty plea was not accepted Those who pleaded guilty before Imprisonment of 25 years or life being prosecuted. imprisonment (Article 68) as well as perpetual withdrawal of all civil rights (Article 72) Those who pleaded guilty after being Imprisonment of 25 years or life prosecuted. imprisonment (Article68) as well as perpetual withdrawal of all civil rights (Article 72) 2° a) Perpetrators, co-perpetrators or Imprisonment of 25 years or life accomplices of murder or imprisonment (Article 69) as well serious violence against as perpetual withdrawal of the right individuals, causing death to vote, to eligibility, to be an together with his or her expert, witness in the rulings and accomplices. trials except in case of assisting b) A person who injured or minor investigations, to possess and committed other acts of serious carry fire arms; to serve in the violence with the intention to armed forces (Article 72) kill them, but who did not attain his or her objective,
Those who did not plead guilty or whose guilty plea was not accepted Those who pleaded guilty after being Imprisonment of 12 to 15 years as
38 prosecuted. well as perpetual withdrawal of the right to vote, to eligibility, to be an expert, witness in the rulings and trials except in case of assisting minor investigations, to possess and carry fire arms; to serve in the armed forces (Article 72) Those who pleaded guilty before Imprisonment of 7 to 11 years as being prosecuted. well as perpetual withdrawal of the right to vote, to eligibility, to be an expert, witness in the rulings and trials except in case of assisting minor investigations, to possess and carry fire arms; to serve in the armed forces (Article 72) 3° Those committed other acts of Imprisonment of 5 to 7 years. ½ of serious violence without the intention the sentence in prison and the other to kill. one in TIG (art 70)
Those who did not plead guilty or whose guilty plea was not accepted Those who pleaded guilty after being Imprisonment of 3 to 5 years. ½ of prosecuted. the sentence in prison and the other one in TIG (art 70) Those who pleaded guilty before Imprisonment of 1 to 3 years. ½ of being prosecuted. the sentence in prison and the other one in TIG (art 70) 4° Those who caused damage to civil compensation property. (art 71)
It is important to highlight some main modifications provided for by this Organic Law compared to the one of 1996:
39 Concerning categories, it maintained the 3 categories and reserved category one to regular courts. In the first category, the Heads of Cells and Sectors shall be categorised according to their charges rather than their administrative positions. It also provided for the crime of rape which was not provided for in the 1996 law. It limited the period of guilty plea to two years starting from its publication date in the Official Gazette while this period was 18 months under the 1996 law. It is necessary to note that in criminal matters, this law provides for a special treatment of minors who were fourteen (14) years or more but less than eighteen (18) years at the time of events. The following table indicates the corresponding sentences.
Table 5: Sentences applicable to minors according to Organic Law of 2001
Cate-gory Charges Sentences according to the Organic Law of 2001 1° a) Planners, organisers, Imprisonment of ten to twenty years instigators, supervisors and (art 74) as well as perpetual withdrawal ringleaders of the Genocide of all civil rights (art 72). or crimes against humanity, b) Leaders, at national level, at the level of Prefecture or Commune in political parties, army, religious denominations or in militia, has committed these offences or encouraged other people to commit them, c) The well known murderer who distinguished himself or herself in the location where he or she lived or wherever he or she passed, because of the zeal which characterised him or her in killings or excessive wickedness with which they were carried out,
40 d) A person who committed rape or sexual torture.
Those who did not plead guilty or whose guilty plea was not accepted.
Those who pleaded guilty after being prosecuted.
Those who pleaded guilty before being prosecuted.
2° a) Perpetrators, co-perpetrators ½ of imprisonment sentence applicable or accomplices of murder or to individuals of majority age as serious violence against provided for by this Organic Law individuals, causing death (Article74) as well as perpetual together with his or her withdrawal of the right to vote, to accomplices. eligibility, to be an expert, witness in the rulings and trials except in case of b) A person who injured or assisting minor investigations, to committed other acts of possess and carry fire arms; to serve in serious violence with the the armed forces (Article 72) intention to kill them, but who did not attain his or her objective.
Those who did not plead guilty or whose guilty plea was not accepted Those who pleaded guilty after being prosecuted Those who pleaded guilty before being prosecuted
3° Those committed other acts of ½ of Imprisonment sentence applicable serious violence without the to individuals of majority age as intention to kill them. provided for by this Organic Law
41 (Article74) Those who did not plead guilty or whose guilty plea was not accepted Those who pleaded guilty after being prosecuted Those who pleaded guilty before being prosecuted 4° Those who caused damage to Civil compensation property.
It is worth mentioning that individuals, who were less than fourteen (14) years of age at the time they committed the crimes, cannot be prosecuted but they can be put in special solidarity camps for 3 months.
§.2 Creation of the Department of Gacaca Courts within the Supreme Court
The Department of Gacaca Courts within the Supreme Court came from the amendment of 18/04/2000 of the Fundamental Law of the Republic of Rwanda12 Article 2, modifying article 28 of Arusha Peace Accord especially on Power Sharing, which provided as follows: The Supreme Court comprises of the following six sections: a) The Gacaca Courts Department; b) The Courts Department c) The Cassation Court d) The Constitutional Court e) The State Council a) The “Court des Comptes”( charged with auditing state treasury)
12 Amendment of 18/04/2000 of the Fundamental Law of the Republic of Rwanda, O.G no 9 of 01/05/2000.
42 In this regard, Rwandan legislator proceeded to the amendment of other related legal texts:
The Organic Law no 22/2000 of 11/10/2000 modifying and complementing Decree-law n˚ 09/80 of 7th July 1980 governing the judicial organisation and jurisdiction13; The Organic Law no 23/2000 of 11/10/2000 modifying and complementing the Law of 23rd February 1963 relating to the organisation of the Supreme Court14. Article 3 of Organic Law no 22/2000 mentioned above classifies Gacaca Courts among specialised Courts and the first article provides for organisation, jurisdiction and functioning of Gacaca Courts governed by a specific Organic Law.
As for the Organic Law no 23/2000, its articles 3 and 4 provide for the attributions of the Department of Gacaca Courts as follows:
To coordinate and control activities of Gacaca Courts of the Republic ; To ensure constant supervision of the general functioning of Gacaca Courts and on the respecting and application of laws, rules and regulations in force; To organise periodic inspections of Gacaca Courts in order to gauge the progress of activities.
However, in regards of respect of the principle of independence of judges, the Department of Gacaca Courts could not, in the accomplishment of its mission, instruct or prohibit a Gacaca Court from trying a case in a given manner. The rules and regulations, orders and instructions concerning the functioning of Gacaca Courts were set by the President of the Supreme Court after consulting the members of the latter.
A. Elections of “Inyangamugayo” judges
The elections of “Inyangamugayo” judges took place from 4th to 7th October 2001. The elections were ranging from Gacaca Courts of Cell, Sector, District and Province.
13 Organic Law no 22/2000 of 11/10/2000 modifying and complementing the Decree-law n˚ 09/80 of 7th July 1980 governing the judicial organisation and jurisdiction, O.G no 7 of 01/04/2001.
14 Organic Law no 23/2000 of 11/10/2000 modifying and complementing the Law of 23rd February 1963 relating to the organisation of the Supreme Court, O.G no 7 of 01/04/2001.
43
The Presidential Order n˚ 12/01 of 26th June 2001 provides for the modalities to organise elections of members of Gacaca Courts organs. These elections were organised by the Electoral Commission composed of 6 individuals designated by the President of the Republic, including a President and Vice-President. The commission had a three-month mandate. The commission was represented at the level of Provinces, Kigali City and other towns as well as District level.
According to article 7 of the above mentioned Presidential Order, the following are conditions for individuals eligible at Cell level Gacaca Court: To be of Rwandan nationality; To have his or her residence in the Cell where he or she needs to present his or her candidature; To be at least 21 years of age; To be a person of good morals and conduct; to be truthful and characterised by a spirit of speech sharing; not to have been sentenced to a penalty of at least six (6 ) months of imprisonment; not to have participated in Genocide or other crimes against humanity; to be free from the sectarianism; to have no history of dismissal for indiscipline.
On the eve of elections, the President of the Republic delivered a speech calling upon Rwandans to fully participate, and this message was rebroadcasted on the day of elections. The elections were marked by a massive participation of the population.
According to Article 2 of this Presidential Order, the Bench of the Gacaca Court of the Cell and its delegates in the Gacaca Court of the Sector were elected by the General Assembly of the Cell composed of all inhabitants of that Cell aged 18 and above, of Rwandan nationality as well as foreigners residing in Rwanda for at least one year bearing a residence permit.
The General Assembly chose 24 individuals of integrity among themselves, 5 of whom were delegated to the Gacaca Court the Sector while the other 19 composed the Bench of the Gacaca Court of the Cell. These 19 then met in turn to successively elect members of the coordination committee: the president, two vice- presidents and two secretaries.
44 Members of the Bench of Gacaca Court of the Sector, District or Town, Province or Kigali City and their delegates at the immediate superior levels were elected by the General Assembly of each Court. This consisted of 50 persons of integrity delegated by the Gacaca Court of the concerned jurisdiction. The elections started at 7h 00’ and ended at 18h 00’. The elections ended by the swearing in of elected members of each Court.
In general, these elections were held in a very satisfying manner; There was massive participation of the citizens, in particular women; The elections were well organised, especially on logistics and mobilisation aspect of the population about elections stakes; The elections were held in transparency which implied respect of candidates’ and voters’ rights; The leaders proved vigilant and corrected the errors or violations of electoral directives, to the extent of repeating the election process whenever it was deemed necessary; The citizens did not only speak of the qualities of the candidates they considered as real individuals of integrity, they also afforded to denounce the candidate they considered not fulfilling the criteria to be elected as “Inyangamugayo”.
45 Table 6: Classification of “Inyangamugayo” Judges on gender basis Province Gender Male Female Total Number % Number % Kigali City 1.433 59.3 985 40.7 2.418 Kigali Ngali 9.015 63 5.290 37 14.305 Gitarama 9.685 57.9 7.048 42.1 16.733 Butare 6.426 56.7 4.911 43.3 11.337 Gikongoro 7.757 62.2 4.724 37.8 12.481 Cyangugu 6.775 62.6 4.043 37.4 10.818 Kibuye 6.275 65.5 3.311 34.5 9.586 Gisenyi 10.329 76.1 3.238 23.9 13.567 Ruhengeri 12.854 77.3 3.781 22.7 16.635 Byumba 9.340 74.7 3.157 25.3 12.497 Umutara 3.915 68.3 1.814 31.7 5.729 Kibungo 7.245 58.4 5.154 41.6 12.399 Total 91.049 65.7 47.456 34.3 138.505 Report of the survey on improvement of welfare of “Inyangamugayo”, NSGC and BTC, November 2005
B. Training of 2002
“Inyangamugayo” Judges have a central role in the Gacaca Court system. They are the ones to implement what was conceived by the Government and to use all possible ways for finding out the truth and rendering justice. At this point, many worries especially related to the capacity of Judges were raised from the beginning. Therefore, the training of “Inyangamugayo” Judges was inevitable. To make it more effective, it was necessary to start by the training of trainers.
46 1. Training of trainers
The trainers were individuals already familiar with the law, notably those practicing as judges, students of law and human rights activists. The training lasted for 10 days and was carried out in various training centres. The training mainly focused on the Organic Law no 40/2000 of 26/01/2001 and adult training methodology. According to the trainers, the subjects and the issues discussed therein permitted the beneficiaries to have general knowledge on Genocide crime in general and Genocide against TUTSI in particular.
The training was organized in form of debates that were made after presentations that indicated participatory approach. The presenter evoked the curiosity of the participants by series of questions that were later discussed in working groups. These were followed by sharing views got from the various working groups whereby subsequent solutions were proposed. The trainers of “Inyangamugayo” judges had two training manuals: “Igitabo cy’imfashanyigisho y’amahugurwa y’abazahugura “Inyangamugayo” » and « Imfashanyigisho isobanura itegeko- ngenga rishyiraho inkiko Gacaca compiled to facilitate the training of “Inyangamugayo””.
2. The training of “Inyangamugayo” judges
The training of “Inyangamugayo” judges started on09/04/2002 and ended on 10/05/2002. All “Inyangamugayo” were trained. The sessions were held in harmony characterised by a mutual understanding and brotherhood. The topics discussed were the following: The objectives of Gacaca Courts and the analysis of these objectives; the code of ethics of the judges; the functioning of Gacaca Courts; The collaboration between Gacaca Courts and judicial or administrative organs (Department of Gacaca Courts, Prisons, Police, Prosecution Office…) Filling forms; “Inyangamugayo” judges were well equipped to fulfil their mission. Nevertheless, the Department of Gacaca Courts was still committed to organising further trainings to build their capacity.
47 Rendering justice after Genocide was indispensable. The challenges related to this mission could not interfere with the obligation to rebuild social cohesion. This is the mission assigned to Gacaca Courts, an innovation to overcome limitations of the regular administration of justice through reconciliatory, rapid and participatory procedures. The support of everybody was therefore necessary for the success of their pilot phase.
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Part II: PILOT PHASE
The Gacaca process began by a pilot phase. The aim of this phase was to ensure efficiency of the process and to sort out lessons for orientation and improvement of organisation and functioning of Gacaca Courts. In this part, we will describe the pilot phase in its various stages: the phase of data collection and that of trials.
Chapter One: Data collection
The process of Gacaca Courts was officially launched on the 18th June 2002 by His Excellency Paul KAGAME, President of the Republic of Rwanda. The activities of Gacaca Courts started by the phase of data collection in 12 Sectors of the Country; one Sector per Province and Kigali City. The Sectors are the following: Nyarugunga ( Kigali City), Kindama (Kigali Ngali), Birenga (Kibungo), Gahini (Umutara), Nzahaha (Cyangugu), Murama (Gisenyi), Nkomero (Gitarama), Mataba (Ruhengeri), Mutete (Byumba), Gishamvu (Butare), Nkumbure (Gikongoro) et Nyange (Kibuye). The rate of prisoners that pleaded guilty constituted the major criteria for selection.
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Map showing the twelve Gacaca Courts of the pilot phase
The 25th November of the same year, the data collection covered 106 other Sectors; one Sector per District or Town.
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Below is the map showing the 106 Gacaca Courts of the Sector of the pilot phase
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Section One. The progress of data collection, its results and lessons learnt
1. The progress of data collection The information related to Genocide was collected during the six general meetings. The seventh meeting was dedicated to making individual files for suspects, categorisation and transfer of files to the competent court15. Each meeting could hold several sessions until its objective is attained.
a) The first meeting During the first General Assembly of the Cell, judges put emphasis on mobilizing the population on importance of Gacaca Courts and their objectives. It was on that occasion that the weekly day for meeting was set.
The first day was marked by the presence of administrative authorities, a good number of independent observers and the massive participation of the population.
b) Second meeting This meeting registered all the individuals that were residing in the Cell before 6th April 1994. According the observations made, the population also participated massively.
c) The third and fourth meeting This step was an important phase of Gacaca Courts. As a matter of fact, Gacaca Court of the Cell drew the list of individuals killed within the Cell and those killed outside it. As mentioned in previous cases, the participation of the population was so high. The families of the victims had thus the opportunity to know about the hidden facts or completing where they only had fragmented information.
15 URUKIKO RW’IKIRENGA, UMUTWE USHINZWE INKIKO GACACA, Gahunda y’Imirimo y’Urukiko Gacaca rw’Akagari(I), Kigali, Ugushyingo 2002, p. 4
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d) The fifth meeting
During the 5th meeting, an inventory of the families and their looted or damaged property was made. During this step, the forms of individuals that were considered as civil party were established. All the members of the same family were registered on the same form. The properties in question were publically registered and the participants had the right to comment on the truth of declarations made. Details of the returned or reimbursed properties were also given.
e) The sixth meeting Each participant was invited to give information on what he or she saw or heard during Genocide. The judges remind the population the advantaged guilty plea. The sixth meeting was supposed to end with the establishment of a list of suspects. This step faced more challenges because some participants were silent or refrained from participating in the meeting because they were personally involved. The following documents were to be prepared. a list of individuals (per family) who were residing in the Cell before the Genocide; a list of individuals who died in the Cell due to Genocide; a list of individuals killed outside their Cell of residence in Genocide; a list of individuals killed in their Cell of residence due to non-participation in Genocide; a list of suspects; individual file of the accused; Forms relating to damages incurred by the victims during Genocide (civil party by household form) Forms for those who want to engage in the procedure of pleading guilty
In implementation of this task, two methods were followed: re-establish the situation together (between families), during the assembly, or ask the head of Nyumbakumi to prepare a list of households and individuals who lived in that Nyumabakumi before Genocide. Also, during the meetings, the population discussed these lists to correct them and to add new elements. This last method seemed to be more efficient and quicker.
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f) The seventh meeting During this meeting, the Bench ended the exercise by filling the individual files of suspects and went on to categorise and transfer files to competent courts.
2. Achievements of the data collection phase The data collection phase came up with the achievements shown in the tables below:
Table 7: Achievements of the data collection phase Province/Kigal Those who pleaded Provisionally Provisionally Established i City guilty in Gacaca Released detained files Courts Kigali City 107 153 84 4.631 Kigali Ngali 321 44 98 8.645 Gitarama 594 4 4 7.859 Butare 256 19 76 3.945 Gikongoro 37 19 28 3.653 Cyangugu 53 49 8 3.628 Kibuye 340 4 0 4.365 Gisenyi 176 60 81 4.013 Ruhengeri 103 34 21 1.519 Byumba 75 6 6 1.535 Umutara 168 56 19 3.278 Kibungo 613 158 130 7.502 TOTAL 2.843 606 555 54.573 Source: NSGC, Annual report 2004, p. 24.
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Categorised 1st Category 2nd Category 3rd Category Province/Kigali individuals City Kigali City 4.631 1.172 2.745 714 Kigali Ngali 8.645 615 6.265 1.765 Gitarama 7.859 596 6.324 939 Butare 3.945 247 2.598 1.100 Gikongoro 3.653 390 2.684 579 Cyangugu 3.628 504 2.487 637 Kibuye 4.365 531 3.073 761 Gisenyi 4.013 408 2.148 1.457 Ruhengeri 1.519 151 744 624 Byumba 1.535 57 809 669 Umutara 3.278 396 1.494 1.388 Kibungo 7.502 825 4.622 2.055 TOTAL 54.573 5.842 35.993 12.688 Source: NSGC, Annual report 2004, p. 26.
Comparison in terms of percentage: First category: 10.8% Second category: 65.9% Third category: 23.3%
3. Lessons learnt As mentioned above, the pilot phase was initiated to ensure the efficiency of the process and to sort out lessons to improve the functioning of Gacaca Court. The lessons learnt in this phase were therefore the basis for restructuring of the Gacaca court organs and reforming their functioning. Among these lessons, we can mention the following:
1. The necessity to combine efforts to ensure the follow-up, supervision and coordination of Gacaca court activities;
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2. The need to amend Organic Law n° 40/2000 of 26/01/2001 to improve the functioning of Gacaca Courts; 3. The rate of participation of the population decreased and the activities of Gacaca Courts were sometimes postponed; 4. The security of the witnesses and genocide survivors was threatened; 5. The high level of trauma; 6. The necessity to replace “Inyangamugayo” judges that had no more moral authority; 7. Putting in place some measures to improve the welfare of Genocide survivors.
Section 2: Reorganisation of the functioning of Gacaca Courts
According to the lessons learnt from this phase of data collection, it was noted that some changes were necessary to improve the functioning of Gacaca Courts. The changes were essentially made on the coordination of the activities of Gacaca Courts and their functioning.
1. National Service of Gacaca Courts The organ coordinating the activities of Gacaca Courts was detached from the Supreme Court to become an independent organ known as “the National Service of Gacaca Courts (NSGC)”; it is provided for by the Constitution of the Republic of Rwanda of 04th June 200316 in its article 152; its organisation, attributions and functioning are defined by the Organic law n° 08/2004 of 28 April 2004. According to article one of the Organic Law n° 08/2004 of 28 April 2004 governing the creation, organisation, attributions and functioning of the National Service of Gacaca Courts17, the Organ is charged with the follow-up, supervision and coordination of activities of Gacaca Courts. It is autonomous in administrative and financial management. The National Service charged with the follow-up, supervision and coordination of the activities of Gacaca Courts is specifically responsible for:
16 The Constitution of the Republic of Rwanda of 04/06/2003 as amended to date, O.G.R.R Special no of 04/06/2003.
17 Organic Law n° 08/2004 of 28 april 2004 on the establishment, the organisation, duties and functioning of the National Service in charge of the follow-up, supervision and coordination of the activities of Gacaca Jurisdictions, O.G.R.R n° 9 of 01/05/2004.
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Ensuring the follow-up of functioning of Gacaca Courts and providing `technical advice; Equipping Gacaca Courts with necessary materials; Ensure the proper functioning of Gacaca Courts and the application of laws and regulations that govern them; Exercising constant supervision and putting in place measures necessary for the smooth running of Gacaca Courts’ activities; Ensure the coordination of all activities relating to the functioning of Gacaca Courts. In order to accomplish its mission, the National Service charged with, follow-up, supervision and coordination of the activities of Gacaca can neither join nor prohibit a Gacaca Court to judge a case in any definite sense.
After setting up the NSGC, the functioning and organisation of Gacaca Courts experienced many remarkable changes based on lessons learnt from the pilot phase.
2. Improvement regarding data collection The system of data collection had significant modifications. The seven meetings were omitted and information was collected at every Cell using data collection guidebook prepared by the NSGC.
Data collection was done in two main steps: Data collection done by the population and leaders at Cell level; Presentation of collected data to the General Assembly of the Cell by the Gacaca Court of the Cell for validation; The data collected was organized into three classes: 1. Information relating to the planning of Genocide in the Cell; 2. Information relating to implementation of Genocide and its consequences in the Cell; 3. Information permitting identification of perpetrators of offences that constitute the crime of Genocide in the Cell.
To get this information revealed, the NSGC collaborated with administrative organs that held a sensitisation campaign to encourage the population to give information and testimonies on the
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events relating to the Genocide in their places of residence. In this way, it was emphasised that every Rwandan should tell the truth about what he or she did, knows, saw or heard during Genocide. More particularly, it was mentioned that the perpetrators of the crimes should be the first to engage in the procedure of confessing, pleading guilty, repenting and asking for forgiveness. Thanks to the sensitisation campaign and the improvement made particularly during the data collection, the following information was obtained: 1. The list of individuals in each Cell in September 1990; 2. The list of individuals in each Cell in March 1994; 3. The list of individuals arrested as alleged collaborators of RPF (Ibyitso); 4. List of instigators in the Cell; 5. Meetings aimed at preparing Genocide in the Cell and the list of participants; 6. The list of individuals that had to be killed in the Cell; 7. Information about the distribution of weapons used during Genocide; 8. The members of the militia; 9. Roadblocks that were set up in the Cell; 10. Individuals killed in the Cell; 11. Non-residents killed in the Cell; 12. Individuals killed outside the Cell; 13. Individuals killed in the Cell due to non-participation in Genocide; 14. Non-residents of the Cell killed due to non-participation in Genocide; 15. Individuals killed outside the Cell due to non-participation in Genocide; 16. The places where bodies were thrown; 17. The property looted or destroyed in every household; 18. The households that were attacked in the Cell; 19. Places where people took refuge in the Cell; 20. Genocide survivors in the Cell; 21. Individuals who rescued the targeted victims in the Cell; 22. The attacks that were directed to the Cell; 23. Individuals who became notorious in the killings that occurred in the Cell; 24. The circumstances of the death of each victim in the Cell;
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25. The accused and the charge against him/her; 26. The charge sheet of the accused: This information and the testimonies collected in the documents (booklets and forms) distributed by the NSGC and each type of information was noted basing on the precise and predefined model18. Data collection was finalised by establishing the files of suspects (File of the accused), their category and their transfer to the competent Gacaca Courts or Prosecution Office.
3. Changes made on the functioning of Gacaca Courts; The functioning of Gacaca Courts experienced changes to overcome the difficulties that were encountered during the phase of data collection.
A. Organic Law no 16/2004 of 19 June 2004 governing the organisation, jurisdiction and functioning of Gacaca Courts This Organic Law19 brought modifications relating to organisation and jurisdiction of Gacaca Courts as well as categorisation of Genocide perpetrators.
1. Changes relating to organisation and jurisdiction The composition of the General Assembly of Sector Gacaca Courts was modified. It was composed of all judges (“Inyangamugayo”) of the Gacaca Court seats at that level. The number of “Inyangamugayo” Judges that make up the Gacaca Court Bench became 9 individuals and 5 substitutes. Types and number of Gacaca Courts after restructuring: Cell level Gacaca Court: 9,013 Sector level Gacaca Court: 1,545 Gacaca Court of Appeal: 1,545 Total: 12, 103
18 NSGC, Procedure of collection of necessary data in Gacaca Courts, 2005, p.5.
19 Organic Law n° 16/2004 of 19/06/2004 establishing the organisation, jurisdiction 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, O.G.R.R special no of 19/06/2004.
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Gacaca Courts at the level of District or Town, Province or Kigali City were resolved and Courts were only established at Cell and Sector levels. These Courts exercised their jurisdiction in the following manner: Damage to property remained a matter for the Gacaca Court of the Cell which tried them as the Court of last resort; Other criminal acts were in the competence of the Gacaca Court of Sector and could be appealed against before the Gacaca Court of Appeal; The cases tried following the guilty plea procedure and those of individuals accused of refusal to testify or threats against members of the Bench and witnesses could be subject to appeal and Gacaca courts have the competence to punish the troublemakers in the Court (maintenance of law and order during hearings). The judgements made by an ordinary court as a court of last instance can be reviewed in case there is a contradiction and the truth is discovered by a Gacaca Court or if the individual was given a sentence contradictory to the legal provisions on offences of which they were convicted. The organs of Gacaca Courts were maintained: Coordination Committee; The seat/bench; The General Assembly,
2. Changes related to categorisation The offences constituting the crime of Genocide were classified into 3 categories. Apart from the acts of torture and the dehumanising acts on a dead body, the first category contains the same accusations as provided for by the Organic Law of 2001, the 2nd and 3rd categories of the old law were merged to make category 2, the fourth category became the third.
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Table 8: Crimes and their punishments according to the Organic law of 2004 Category Charges The crimes provide for by the organic law of 2004 1° Capital punishment or life 1. The planners, organisers, instigators, imprisonment (art 72) as well as supervisors and ringleaders of the perpetual and total loss of civil Genocide or crimes against rights. Their list shall be posted at humanity, the office of the Sector of their 2. The individual who, at that time, residence (art 76). was in the organs of leadership, at National level, at Prefecture level, Sub-prefecture, Commune, in political parties, army, gendarmerie, communal police, religious denominations or in militia, has committed these offences or encouraged other people to commit them, 3. the well-known murderer, 4. the individual who committed acts of torture, 5. the individual who committed acts of rape or acts of torture against person’s sexual parts, 6. The individual who committed dehumanising acts on a dead body, together with their accomplices.
Those who did not plead guilty or whose guilty plea was not accepted.
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Those who pleaded guilty. Prison sentence ranging from 25 to 30 years (art 72) as well as perpetual and total loss of civil rights. Their list shall be posted at the office of the Sector of their residence (art 76). 2° 1. Perpetrators, co-perpetrators and Prison sentence ranging from 25 accomplices of murder or acts of to 30 years (art 72) as well as serious violence against others, permanent deprivation of the causing death; right: 2. The individual who injured or a. to vote; committed other acts of serious b. to eligibility; violence with the intention to kill c. to be an expert witness in the them, but who did not attain his or rulings and trials, except in case her objective, together with his or of assisting minor investigations; her accomplices; d. to possess and carry fire arms; e. to serve in the armed forces; Those who did not plead guilty or whose f. to serve in the police; guilty plea was not accepted. g. to be in the public service; h. to be a teacher or a medical staff in public or private service. Their list shall be posted at the office of the Sector of their residence (art 76).
Those who pleaded guilty after being Prison sentence ranging from 12 prosecuted. to 15 years. ½ of the sentence in custody and the other half into community service (art 73) as well as permanent deprivation of to the following rights:
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a. to vote; b. to eligibility; c. to be an expert witness in the rulings and trials, except in case of assisting minor investigations; d. to possess and carry fire arms; e. to serve in the armed forces; f. to serve in the police; g. to be in the public service; h. to be a teacher or a medical staff in public or private service. Their list shall be posted at the office of the Sector of their residence (art 76). Those who pleaded guilty before being Prison sentence ranging from 7 to prosecuted. 12 years. ½ of the sentence in custody and the other half in community service (art 73) as well as permanent deprivation of the right: a. to vote; b. to eligibility; c. to be an expert witness in the rulings and trials, except in case of assisting minor investigations; d. to possess and carry fire arms; e. to serve in the armed forces; f. to serve in the police; g. to be in the public service; h. to be a teacher or a medical staff in public or private service.
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Their list shall be posted at the office of the Sector of their residence (art 76). 3. The individual who committed or Prison sentence ranging from 5 to aided to commit other offences to 7 years. ½ of the sentence in individuals, without the intention to prison custody and the other half kill them, together with his or her into community service (art 73). accomplices. Their list shall be posted at the office of the Sector of their Those who did not plead guilty or whose residence (art 76). guilty plea was not accepted. Those who pleaded guilty after being Prison sentence ranging from 3 to prosecuted. 5 years. ½ of the sentence in prison custody and the other half into community service (art 73). Their list shall be posted at the office of the Sector of their residence (art 76). Those who pleaded guilty before being Prison sentence ranging from 1 to prosecuted. 3 years. ½ of the sentence in prison custody and the other half into community service (art 73). Their list shall be posted at the office of the Sector of their residence (art 76). 3° Those who caused damage to property. Civil compensation (art 75)
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Table 9: Crimes and their corresponding punishments applied on minors according to the Organic law of 2004. Category Charges The crimes provide for by the organic law of 2004 1° 1. The planners, organisers, instigators, Prison sentence ranging from 10 to supervisors and ringleaders of the 20 years (art 78) as well as Genocide or crimes against perpetual and total loss of civil humanity, rights. Their list shall be posted at 2. The individual who, at that time, the office of the Sector of their was in the organs of leadership, at residence (art 76). national level, Prefecture, Sub- prefecture, Commune level, in political parties, army, gendarmerie, communal police, religious denominations or in militia, has committed these offences or encouraged other people to commit them, 3. the well-known murderer, 4. the individual who committed acts of torture, 5. the individual who committed acts of rape or acts of torture against sexual organs, 6. the individual who committed dehumanising acts on a dead body, together with their accomplices.
Those who did not plead guilty or whose guilty plea was not accepted. Those who pleaded guilty. Prison sentence ranging from 8 to
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10 years (art 78) as well as perpetual and total loss of civil rights. Their list shall be posted at the office of the Sector of their residence (art 76). 2° 1. Perpetrators, co-perpetrators and Prison sentence ranging from 8 to accomplices of murder or acts of 10 years (art 78) as well as serious violence against others, permanent deprivation of the right: causing death; a. to vote; 2. The individual who injured or b. to eligibility; committed other acts of serious c. to be an expert witness in the violence with the intention to kill rulings and trials, except in case of them, but who did not attain his or assisting minor investigations; her objective, together with his or d. to possess and carry fire arms; her accomplices; e. to serve in the armed forces; f. to serve in the police; Those who did not plead guilty or whose g. to be in the public service; guilty plea was not accepted. h. to be a teacher or a medical staff in public or private service. Their list shall be posted at the office of the Sector of their residence (art 76). Those who pleaded guilty after being Prison sentence ranging from 6 to prosecuted. 7 years and 6 months. ½ of the sentence in prison custody and the other half into community service (art 78) as well as permanent deprivation of the right: a. to vote; b. to eligibility; c. to be an expert witness in the
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rulings and trials, except in case of assisting minor investigations; d. to possess and carry fire arms; e. to serve in the armed forces; f. to serve in the police; g. to be in the public service; h. to be a teacher or a medical staff in public or private service. Their list shall be posted at the office of the Sector of their residence (art 76). Those who pleaded guilty before being Prison sentence ranging from 3 prosecuted. years and 6 months to 6 years. ½ of the sentence in prison custody and the other half into community service (art 78) as well as permanent deprivation of the right: a. to vote; b. to eligibility; c. to be an expert witness in the rulings and trials, except in case of assisting minor investigations; d. to possess and carry fire arms; e. to serve in the armed forces; f. to serve in the police; g. to be in the public service; h. to be a teacher or a medical staff in public or private service. Their list shall be posted at the office of the Sector of their residence (art 76).
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3. An individual who committed or Prison sentence ranging from 2 aided to commit other offences to years and 6 months to 3 years and individuals, without the intention to 6 months. ½ of the sentence in kill them as well as his or her custody and the other half into accomplices, community service (art 78). Their list shall be posted at the office of Those who did not plead guilty or whose the Sector of their residence guilty plea was not accepted. (art 76).
Those who pleaded guilty after being Prison sentence ranging from 1 prosecuted. year and 6 months to 2 years and 6 months. ½ of the sentence in prison custody and the other half into community service (art 78). Their list shall be posted at the office of the Sector of their residence (art 76). Those who pleaded guilty before being Prison sentence ranging from 6 prosecuted. months to 1 year and 6 months. ½ of the sentence in prison custody and the other half into community service (art 78). Their list shall be posted at the office of the Sector of their residence (art 76). 3° Those who caused damage to property. Civil compensation (art 75).
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3. The training of 2004 on the Organic Law no 16/2004
After these modifications, it was necessary to proceed with the training of “Inyangamugayo” on the new Organic Law governing Gacaca Courts and the new procedure of data collection. The training began from 26th July to 9th September 2004.
Various Government institutions and Non-Governmental Organisations took part in the preparation of courses for this training. The following table shows the topics that were discussed as well as institutions that prepared them.
Table 10: courses taught during the Inyangamugayo training N0 Topic The organ that ensured the preparation of the topic 1. Organic Law no 16/2004 of 19 June 2004 National Service of Gacaca Courts governing Gacaca Courts 2. Trauma and how to assist individuals Ministry of Health traumatised during Gacaca Courts sessions 3. Security during Gacaca sessions Rwanda National Police 4 The functioning of the Gacaca Court of the National Service of Gacaca Courts Cell during the data collection 5 The behaviours of the Coordinators of Gacaca National Service of Gacaca Courts Courts activities (CD) in the follow-up of the work done by Gacaca Courts 6 Reconciliatory justice National Commission for Unity and Reconciliation 7 Prevention and conflict resolution National Commission for Unity and Reconciliation 8 Group entertainment National Commission for Unity and Reconciliation 9 Respecting Human rights during Gacaca National Commission for Human Rights Courts 10 Country, citizen and obligations of the citizen National Commission for Human Rights 11 Community Service as an alternative to prison The Secretariat of Community Service custody (TIG) (TIG) 12 How to assist a victim of rape. International Rescue Committee (IRC) 13 The behaviours of observers of Gacaca Courts PAPG
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The Sector Executive Secretaries were among the participants because they had a major role to play during the phase of data collection and in the whole process.
B. The preparation of “Inyangamugayo” for the trial phase
In order to prepare “Inyangamugayo” for the trial phase, especially for “Inyangamugayo” of Gacaca Courts of the Sector and Appeal, training took place from 22nd November 2004 to 7th January 2005.
The training essentially focused on Organic Law n016/2004 of 19th June 2004 governing Gacaca Courts and trial procedure in Gacaca Courts. The Coordinators of Gacaca Courts activities also had the opportunity to be trained in preparation for the trial phase that was impending; other trainings for “Inyangamugayo” was organised in 2005.
The priority committments of the National Service of Gacaca Courts included continuous training of “Inyangamugayo” Judges for smooth running of activities, especially the decisive trial phase.
After completing the categorisation of suspects, Gacaca Court of the Cell transferred the files to the competent organs for trial. The files of the first category were forwarded to the Prosecution, those of the second category to the Gacaca Court of Sector while files of the third category were to be addressed by the Gacaca Court of Cell. Note that Gacaca Courts were only competent to try files of category two and three: The Sector Gacaca courts and Gacaca Courts of Appeal were dealing with files of category two whereas the Gacaca Courts of the Cell were dealing with category three as courts of first and last instance.
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Chapter II: THE TRIAL PHASE
The trial phase within the 118 pilot sectors was launched on March 10th, 2005.
Section One. The common procedure in Gacaca hearings
Appearance before Gacaca Courts was done according the following stipulated order20. Members of the Coordination Committee selected files basing on the following criteria: 1. Individuals who confessed, pleaded guilty and have been provisionally released; 2. Individuals who confessed, pleaded guilty but had not been detained; 3. Individuals who were suffering from chronic diseases; 4. Individuals who were aged 14 years but not yet 18 years at the time they committed crimes; 5. The elderly; at least 70 years of age; 6. Suspects who were detained and had not yet confessed; 7. Suspects who were not detained and had not confessed.
Whoever is summoned to appear before Court, whether accused, witness, victim or any other person, has to be informed in a period of at least 7 days before the trial. The days are counted starting from the date on which the individual was given the summons. If the defendant has neither known address nor residence in Rwanda, the summons period is one (1) month. The secretary of the Gacaca Court, or the Court registrar in person or through other organs, displays a copy of the summons on the premises of the Court where the case should be tried and at the offices of District or Town, and Province or Kigali City. The copy of the summons can only be displayed in public places intended for that purpose.
The summons is issued by the secretary of the Gacaca Court, through the grassroots authorities where the defendant resides or the authority where he or she is detained. The summoned person who refuses to appear is brought by force.
At every hearing, the President requests all people present to observe a minute of silence in memory of the victims of Genocide, meditating on the effects of Genocide and everyone’s role to address them. Before testifying, the witness had to swear to tell the truth saying: “I take God as
20 NSGC, Trial procedure in Gacaca courts, January, 2005, p. 2.
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my witness to tell the truth”. The public was reminded that refusing to testify, making slanderous denunciations as well as threatening members of the Bench or witnesses, is punishable by the law;
The President then reminds the accused of the advantages of the procedure of confession and pleading guilty. In order to intervene in Gacaca Courts’ sessions, the following 8 instructions were to be observed21: 1. In order for anyone to intervene, he or she should ask for permission by raising of the hand; 2. The President of the Gacaca Court session is the one who grants permission to speak; 3. The priority to take the floor is given to those that come from far away from the Court, the elderly and those with transport problems; 4. All speeches should lead to truth; 5. It is prohibited to interrupt the one who is talking ; 6. It is prohibited to utter insults, assaults or make threats; 7. Speeches should be brief to give others chance to talk; 8. All speeches should be relevant to the agenda of the day.
Hearings were held in different ways depending on: The competent Court to try the case; The guilty plea procedure; Whether the defendant’s residence or address is known or unknown in Rwanda22 “Inyangamugayo” Judges of the Gacaca Appeal Court of Rwempasha
Section 2: The appeal before Gacaca Courts
Means of appeal recognised by Organic Law n0 16/2004 of 19th June 2004 are the following: Objection, Appeal and review of judgement.
21 Idem, p. 3.
22 Idem, p. 4.
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1. Objection Objection can be made against all judgements passed by default by Gacaca Courts. The objection is brought before the Court that passed the judgement. The objection is only admissible if the defaulting party pleads a serious and legitimate reason which impeded him or her from appearing in the trial concerned. The Court shall assess the ground of admissibility, admit or reject it. The opposition period is fifteen (15) calendar days, starting from the day of the notification of judgement passed by default. Note that, the party making opposition who does not appear cannot petition for another opposition.
2. Appeal Judgements relating to damage to property passed by the Gacaca Court of the Cell cannot be subject to appeal, but other cases are subject to appeal. The Gacaca Court of the Sector deals with appeals against judgements rendered by the Gacaca Courts of the Cell of its jurisdiction. Judgments passed by the Gacaca Court of the Sector at first instance, are appealed against before the Gacaca Court of appeal of the same jurisdiction.
The period of lodging an appeal is fifteen (15) calendar days, starting from the day the judgement is pronounced if it was passed during the presence of all parties, or starting from the day following the notification of judgement passed by default against which he or she did not make an opposition.
3. Review of judgement According to article 93 of Organic Law n0 16/2004 of 19/06/2004, the judgement can be subject to review only if: The individual was acquitted in a judgement passed without ap peal by an Ordinary Court, but is later found guilty by a Gacaca Court; The individual was convicted in a judgement passed by an Ordinary Court, but is later found innocent by the Gacaca Court; The individual was given a sentence contradictory to the legal provisions on offences of which that person has been convicted.
The Gacaca Court of Appeal is the only competent Court to review judgements passed under such conditions.
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Section 3: Achievements of Gacaca Courts, challenges met and adopted strategies
1. Achievements of Gacaca Courts After the restructuring and efforts made, remarkable speed characterised the trial phase which, after a short period accomplished the great achievements that can be classified as follows:
Table 11: The situation of trials from 10/03/2005 to 14/07/2006 in the pilot Sectors Province District Cat.2 files Accused who Accused who Individuals Tried forwarded to pleaded guilty pleaded guilty whose guilty individuals the Court before being after being plea was prosecuted prosecuted accepted SOUTH Kamonyi 1099 948 0 115 266 Nyamagab e 1556 250 28 208 318 Gisagara 675 174 91 154 262 Nyanza 1010 15 64 122 212 Nyaruguru 1029 113 21 120 237 Huye 876 155 64 134 214 Ruhango 2141 348 40 80 264 Muhanga 1124 121 130 129 214 Sub- total 9510 2124 438 1062 1987 NORTH Gakenke 541 128 57 136 219 Musanze 290 23 2 22 100 Burera 36 5 16 15 29 Gicumbi 857 44 143 159 297 Rulindo 1308 205 25 198 495 Sub-total 3032 405 243 530 1140 EAST Ngoma 2436 1398 126 393 569 Kayonza 1847 227 54 192 380 Gatsibo 776 41 23 35 198 Bugesera 2853 559 472 241 363 Rwamaga na 800 41 14 60 158 Nyagatare 236 7 2 9 131
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Kirehe 1297 169 14 64 102 Sub- total 10245 2442 705 994 1901 WEST Rutsiro 1830 324 13 134 305 Nyabihu 193 7 0 12 59 Rubavu 1058 43 19 47 300 Ngororero 1098 239 102 310 475 Karongi 1427 125 96 107 214 Nyamashe ke 1754 124 73 174 332 Rusizi 1127 18 87 99 312 Sub- total 8487 880 390 883 1997 KIGALI Gasabo 1685 90 79 143 259 CITY Nyarugen ge 1195 72 28 67 160 Kicukiro 1233 132 22 80 277 Sub- total 4113 294 129 290 696 TOTAL 35387 6145 1905 3759 7721
Number Pronounced Non Appeals pronounced Acquittals Community of trials judgements pronounced Judgements in Service judgements Appeal Courts (TIG) 7.015 6.502 513 1.673 666 739 2073
2. Challenges identified during the pilot phase Persistence of Genocide ideology; Killing and intimidation of survivors of Genocide, witnesses and “Inyangamugayo” judges; Destruction or damaging of equipment used in data collection (filing cabinets, books, forms…);
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“Inyangamugayo” judges accused of participation in crime of Genocide (1.226 individuals identified)23; Leaders accused of Genocide; Refusal to testify; People moving to Provinces where they were unknown; Refugees who fled Gacaca Courts; Partial confession of crimes causing re-categorisation or maximum penalties; Serious trauma cases (193 cases) 24.
3. Strategies set up: Mobilizing the population for: Active participation of everyone in Gacaca process; Involving all classes and categories of the Rwandan society; Continue sensitising Genocide suspects about the procedure of confessions, guilty plea, repentance and apologies; Fight against the killings and intimidation against Genocide survivors, witnesses and “Inyangamugayo” judges; Setting up security measures for Gacaca Courts equipment; Taking care of traumatised individuals; Building capacities of “Inyangamugayo” judges through continuous training; Replacing “Inyangamugayo” judges accused of Genocide.
The success of the pilot phase, both in data collection and trials, especially the will shown by Rwandans to resolve Genocide-related cases to concentrate all efforts on the development of the country led to the launching of Gacaca Courts’ activities countrywide.
23 NSGC, Report on activities of Gacaca Courts in the pilot phase, Kigali, 2005, p. 31.
24 Ibid.
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PART III: GACACA COURTS PROCESS AT NATIONAL LEVEL
At National level, the activities of Gacaca Courts were launched on the 24th June 2004 by His Excellency Paul KAGAME, the President of the Republic of Rwanda, and at all levels of Gacaca Courts. This means that on that date 9013 Gacaca Courts of the Cell, 1545 Gacaca Courts of the Sector and 1545 Gacaca Courts of Appeal were given green light to start working officially according to their respective jurisdictions. The activities involved the collection of information on the planning, organisation and perpetration of Genocide and other crimes against humanity that targeted the Tutsi between October 1st 1990 and 31st December1994 and proceeding to their trial.
Chapter One: DATA COLLECTION AT NATIONAL LEVEL
The activities of data collection at National level started on 15th January 2005 and took place in 8,262 Gacaca Courts of the Cell additional to the other 751 Gacaca Courts of the Cell that had started in the pilot phase. Before starting the data collection, specifically from the 26th July to 9th September 2004, the NSGC provided all stakeholders and more particularly “Inyangamugayo” judges with training on the new Organic Law and on data collection procedure as prepared in the booklet known as “Procedure for necessary data collection in Gacaca Courts”.
Equipment comprising a large amount of booklets mentioned above, and samples of forms to be filled, note books, registers, pens and foot rulers were distributed. Thanks to Government of Rwanda that provided financial support.
To collect more information and maximise participation of the population, data collection was first done in administrative zones called NYUMBAKUMI (ten households) that were the smallest administrative entities in the Cell. After getting the whole situation of Nyumbakumi making up the Cell, there was pooling of all information collected in order to get the situation of the whole Cell.
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After getting the situation of the whole Cell, collection of information was also done in prisons basing on the Cells of origin or residences of the detainees at the time they commited the crimes they were accused of.
The note books containing the gathered information from prisoners was put together and sent to NSGC which, in turn, sent them to the concerned Gacaca Courts for consideration and integration.
After compiling the information from the prisoners with the information collected from the Cells, the general population, the General Assembly of the Gacaca Court of the Cell proceeded to validation and establishment of the list of individuals that were accused.
Section One: Validation of information
The aim of this operation was to exhaustively present to the Cell level Gacaca General Assembly all information collected so far on the preparation and implementation of Genocide in the Cell so as to adopt them by consensus. The validation was followed by the transcription of all acquired information in registers to serve as data base for the Gacaca Court of the Cell. The major challenge faced during the validation phase was the tendency of prematurely bringing in debates similar to hearings despite the emphasis made by the NSGC to avoid confusing collection of information that is pre-trial phase with the phase of hearings.
Section 2: Drafting the list of suspects
Drafting the list of individuals accused of having participated in Genocide commonly known as the “list of suspects” was made by the Gacaca Court of the Cell basing on the information validated by the General Assembly of the Cell and consequent allegations on each person. Nation-wide, the total number of individuals put on the list of suspects by the end of the data collection phase, on 30th June 2006 was 818,564 suspects as shown in the following table:
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Table 12: The number of individuals put on the list of suspects
NORTHERN PROVINCE
District 1st CATEGORY 2nd CATEGORY 3rd CATEGORY TOTAL Burera 68 521 462 1051 Gakenke 948 9026 8694 18668 Gicumbi 533 3069 2982 6584 Musanze 365 2630 2139 5134
Rulindo 800 10257 8121 19178 Sub- total 2714 25 503 22 398 50 615
SOUTHERN PROVINCE
District 1st CATEGORY 2nd CATEGORY 3rd CATEGORY TOTAL Gisagara 3770 19131 13206 36 107 Huye 4633 24082 18753 47 468 Kamonyi 4329 28335 19560 52 224 Muhanga 3 652 17 273 14 628 35 553 Nyamagabe 3 511 16 260 19 683 39 454 Nyanza 6833 29694 24951 61 478 Nyaruguru 3461 19329 13349 36 139 Ruhango 3407 20371 21096 44 874 Sub- total 33 596 174 475 145 226 353 297
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EASTERN PROVINCE
District 1st CATEGORY 2nd CATEGORY 3rd CATEGORY TOTAL Bugesera 4186 28784 12552 45522 Gatsibo 2185 7982 6958 17125 Kayonza 3 012 12 618 7 730 23 360 Kirehe 1 533 11 062 8 231 20 826 Ngoma 3080 21599 14187 38 866 Nyagatare 130 920 1560 2 610 Rwamagana 4229 23652 9781 37662 Sub total 18 355 106 617 60 999 185 971
WESTERN PROVINCE
District 1st CATEGORY 2nd CATEGORY 3rd CATEGORY TOTAL Karongi 5 216 28 973 20 490 54 679 Ngororero 1 626 12 947 12 133 26 706 Nyabihu 828 4 277 3 599 8 704 Nyamasheke 3 511 21 982 14 111 39 604 Rubavu 1 196 5 209 5 241 11 646 Rusizi 2 240 14 616 2 535 19 391 Rutsiro 2782 12517 10585 25 884 Sub-total 17 399 100 521 68 694 186 4
KIGALI CITY
1st 2nd 3rd District CATEGORY CATEGORY CATEGORY TOTAL Gasabo 2292 13276 6452 22020 Kicukiro 1453 6020 2513 9986 Nyarugenge 1 460 6 145 2 456 10061 Sub- total 5 205 25 441 11 421 42 067 GRAND TOTAL 77 269 432 557 308 738 818 564
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When the Gacaca Courts made progress towards closure of their activities, additional data collection was repeated in some locations. As a matter of fact, claims of the population especially survivors showed that information about Genocide collected in some places was only superficial due to conspired silence (CECEKA). The latter supported negative attitudes of negation and trivialisation of Genocide to favoured impunity of perpetrators. In order to uproot the culture of impunity, Gacaca Courts repeated the collection of information in certain areas. The following table shows some places where additional collection of information was done.
Table 13: Places where additional data collection was done DISTRICT SITE NUMBER OF NEW FILES MADE MUHANGA KABGAYI CATHEDRAL 458 NGORORERO MUHORORO 125 CATHEDRAL NYANGE PARISH 50 MUNYINYA 27 KESHO 137 MURAMBA PARISH 70 MRND BUILDING 250 KARONGI BISESERO 2375 KARONGI BIRAMBO 271 NYAMASHEKE NYAMASHEKE PARISH 71 HUYE NUR 119 TOTAL 3.953
Chapter II: TRIALS AT NATIONAL LEVEL
As we have mentioned above, the hearings had began in 118 Gacaca Courts of the Sector in the pilot phase since 10th March 2005. The trial phase at National level started on 15th July 2006 and was extended to 1427 Gacaca Courts of Sectors and their appeal instances. For its implementation, several training sessions were carried out, the most important ones focused on Organic Law of 2004.
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Section one: The 2006 training on trial procedure
In order to build the capacity of “Inyangamugayo” Judges, the NSGC put in place a permanent team of 551 trainers composed of 106 District Coordinators and 445 “Inyangamugayo” Judges selected by their peers basing on their intellectual capacity (teachers, civil servants and private sector employees…).
A. The training of trainers It was done from 12/06/2006 to 14/06/2006. The training was held at IWACU centre, ISANO and SFB.
B. The training of “Inyangamugayo” judges This training lasted for three days with an average class of 56 “Inyangamugayo” judges. It was delivered by “Inyangamugayo” judges trained for this purpose with the collaboration and under the supervision of Gacaca Courts District Coordinators. The training started on 15th June 2006 and ended on 30th June 2006.
Section 2: Trials’ progress and achieved results
The procedure of trials at national level is the same as the one followed in the pilot phase. The rules and principles governing the conduct of trials have been compiled in a booklet known as “Trial procedure in Gacaca courts”.
The priority of hearings followed this order: 1. Individuals who confessed, pleaded guilty and have been provisionally released; 2. Individuals who confessed, pleaded guilty and were detained; 3. Individuals who confessed, pleaded guilty and have not been detained; 4. Individuals who suffered from chronic diseases; 5. The minors who were aged 14 years but not yet 18 years at the time they committed crimes; 6. The elderly, at least 70 years old; 7. Suspects who were detained and have not confessed; 8. Suspects who were not detained and have not confessed.
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The first hearing had great success due to the smooth running of the trials of suspects who pleaded guilty. The latter showed a decent behaviour and aroused the attention and interest of the community to Gacaca Courts activities.
The trials started with files of the second category prepared by Gacaca Court of the Cell. The latter could not begin the trials of third category cases unless they completed files of all individuals appearing on their list of suspects.
Since the launching, decisions of Gacaca Courts varied depending on whether the accused was found guilty or innocent, pleaded guilty and confessed or not. Regarding individuals who pleaded guilty and confessed especially those whose confession was accepted, the main sentence of imprisonment had to be executed in 2 phases: the half in prison and the other half in the community service (TIG). As the first trials were those of the individuals provisionally released for having pleaded guilty and confessed, most of them were only sentenced to community services because the part reserved to prison custody had already been served. In order to facilitate the organisation and implementation of the community services which fall under the responsibilities of the “Executive Secretariat of the National Committee for the Community Services”, the NSGC issued instruction n° 08/06 of 25/07/200625 governing transmission and filling of identification form for individuals sentenced to imprisonment with Community Services.
These forms had to be filled and forwarded to the Executive Secretariat of the National Committee for the Community Service by the Gacaca Court that passed the decision as the Court of last resort.
As Gacaca Courts process advanced, the need to amend and adjust its legal texts became necessary considering the legal problems at hand. Thus, several amendments of Organic Law n° 16/2004 of 19/6/2004 governing the organisation, jurisdiction and functioning of Gacaca Courts
25 URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza n°08/06 yo ku wa 25/07/2006 y’Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca arebana n’iyuzuzwa ry’ifishi y‘uwakatiwe n’Urukiko Gacaca igihano cy’igifungo kirimo gukora igihano nsimburagifungo cy’imirimo ifitiye Igihugu akamaro, Kigali, 2006.
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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 followed in different periods.
1. Particularities of 3rd category trials In handling the crimes against property, the amicable resolution was favoured since the organic law of 200126. If the parties agreed on their problem, the only task of the Gacaca Court of the Cell was to “validate” their will27. This principle is even provided for in article one and two of the instruction no 14/2007 of 30/03/2007 of NSGC.28 Failure to this, the parties brought their case to the Gacaca Court of the Cell to be handled according to the provisions of the law. The reparation of damaged properties was done through the restitution of the property looted whenever possible, paying the equivalent of the ransacked property or carrying out the work worth the value of the property to be repaired29.
Anyone ordered to compensate for what was damaged has to choose one way from the three provided by the Organic Law and the Gacaca Court has to confirm the way chosen and determines the period of execution. If a person has been ordered to compensate for the damaged property and does not do it within the provided timeframe, the execution is done coercively by bailiffs. The latter are monitored by the Ministry of Justice.
Although offences of 3rd category constitute the Crime of Genocide, there is no prison sentence applicable to the perpetrators of such offences; they are only ordered to compensate for the damages caused to the property of another.
26 See on this issue art. 51 whose content was mantained by the Organic Law of 2004. 27 With a form to fill-in distributed by the NSGC (Inyandikomvugo y’ubwumvikane ku mutungo wangijwe cyangwa wasahuwe muri jenoside). 28 URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza no 14/2007 yo kuwa 30/03/2007 y’ Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca arebana no kuriha umutungo wononwe mu gihe cya jenoside n’ibindi byaha byibasiye inyokomuntu byakozwe hagati y’itariki ya mbere Ukwakira 1990 n’iya 31 Ukuboza 1994, Kigali, 2007.
29 See art. 95 of the organic law n° 16/2004 of 19/6/2004 mentioned above.
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In the trials of cases of third category, Gacaca Courts faced challenges mainly resulting from the complexity of the execution of Genocide; that was massively committed and especially the commission of acts of looting and destruction of property. In some situations, some Gacaca Courts faced challenges whereby it was not easy for them to identify the perpetrators of committed crimes and in determining the value of the property destroyed; in other situations, the execution of judgements was difficult or almost impossible. We can mention the following for example: Luck of confessions for the crimes of category three; Property looted or destroyed by unknown individuals or not easily identifiable; Expensive properties looted or destroyed by destitute individuals; Unidentifiable properties due to the fact that all the members of the family of the owners have been completely decimated; Under-estimation or over-estimation of the value of properties damaged or destroyed, etc…
The slow voluntary execution of judgements was due to lack of good will or immediate insolvability of the debtors. In general, the resolution of the problem of the damage to property was guided by the spirit of mutual understanding and peace building aimed at strengthening unity and reconciliation among Rwandans rather than the rigour of the repressive law. It is in this scope that many victims voluntarily forgave and remitted the debts to their debtors.
2. Organic Law no 28/2006 of 27/06/2006 setting up the first amendment of Organic Law of 2004 This amendment had the aim of allowing Gacaca Courts to keep their territorial jurisdiction after the administrative reform established by the Organic Law no 29/2005 of 31/12/2005 governing the organisation of administrative entities of the Republic of Rwanda30.
As a matter of fact, the 2nd paragraph of article two of the Organic law no 28/2006 of 27/06/200631modifying and complementing the Organic Law of 2004 provides that the
30 Organic Law no 29/2005 of 31/12/2005 determining the administrative entities of the Republic of Rwanda, OGRR special n° of 23/12/2005. 31 Organic Law no 28/2006 of 27/06/2006, OGRR special no of 12/07/2006.
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jurisdiction of the Cell Gacaca Court is the former Cell, the jurisdiction of Sector Gacaca Court is the former Sector and that of the Gacaca Court of Appeal is the former Sector as it was before the publication of the Organic Law no 29/2005 of 31/12/2005.
3. Organic Law no 10/2007 of 01/03/2007 amending Organic Law of 2004 as modified and complemented to date This amendment was mainly aiming at allowing Gacaca Courts to have more than one seat in order to speed up the trial of files they had, to revise the punishments and categorisation of suspects of the first and second category and lastly to introduce the review of the decisions made by Gacaca Courts.
A. The creation of several Benches within the Gacaca Courts Article one of the above-mentioned Organic Law provides that a Gacaca Court can have more than one Bench wherever necessary and gives the power to the NSGC to issue instructions related to establishment and collaboration of Benches within the same Gacaca Court. In this regard, NSGC issued Instruction n° 11/07 of 2 March 200732. This instruction instituted the establishment of several Benches within Gacaca Court which had more than 150 files to be tried; this number kept increasing with the advancement of the trial process.
Therefore, 1,803 Benches were created within the existing 1,545 Sector Gacaca Courts and 412 Benches within the existing 1545 Gacaca Courts of Appeal.
Since the establishment of several Benches within a Gacaca Courts, each Bench is composed of 7 “Inyangamugayo” Judges and 2 “Inyangamugayo” substitutes Judges. Increasing the Benches within the Courts allowed the speeding up of trials of the second and third categories as shown by the following tables:
32 URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza n°11/07 yo ku wa 02/03/2007 y’Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca arebana n’ishyirwaho ry’inteko nyinshi mu Rukiko Gacaca n’imikoranire yazo, Kigali, 2007.
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Table 14: Trial progress from 1st March 2007 to 31st December 2007 Level of Gacaca Courts of the Cell Province Received files Number of cases Number of cases Pending resolved amicably tried files Southern 270 472 103 562 133 223 33 687 Western 147 370 50 038 83 151 14 181 Northern 47 098 16 681 29 815 602 Eastern 123 768 43 527 75 942 4 299 Kigali City 23 443 5 434 16 234 1775 Total 612, 151 219, 242 338, 365 54,544 =9%
Sector Gacaca Courts Province Received files Number of cases resolved Number of cases Pending amicably tried files Southern 181 724 158 777 17 581 5 366 Western 97 934 82 864 13 615 1 455 Northern 28 213 22 330 5 797 86 Eastern 101 356 82 504 18 504 348 Kigali City 35 228 26 419 6 436 2 373 Total 444, 455 372, 894 61, 933 9, 628 = 2%
Gacaca Courts of Appeal Province Received files Number of cases Number of Pending files resolved amicably cases tried Southern 27 129 24 496 48 2 585 Western 19 335 18 525 19 791 Northern 6 985 6 903 11 71 Eastern 13 271 12 840 10 421 Kigali City 4 380 4 011 1 368 Total 71, 100 66, 775 89 4, 236 = 5%
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Review of judgement Province Received files Files to be reviewed Number of files Tried cases Pending files Southern 9 960 2 641 1040 1601 Western 4 925 993 866 570 Northern 1 630 464 342 122 Eastern 3 730 1213 800 413 Kigali City 1408 414 253 161 Total 21, 653 6, 168 3, 301 2,867 = 30%
SUMMARY TABLE Gacaca Courts Received files Tried files Pending files Sector 444.455 434.827 9.628 Appeal 71.100 66.864 4.236 Cell 612.151 557.607 54.544 Total 1,127,706 1,059,298 68,408 N.B.: The number of files increased due to new testimonies gathered during the trial process.
B. The re-categorisation according to Organic Law no 10/2007 of March 1st, 2007 The Organic Law no 10/2007 of March 1st, 2007 redefined the categorisation by transferring some suspects of the first category to the second and thus, putting them under the jurisdiction of Gacaca Courts. The transferred suspects as provided for by the Article 11 of this Organic Law were: 1° the well-known murderer who distinguished himself or herself in the area where he or she lived or wherever he or she passed, because of the zeal which characterised him or her in the killings or excessive wickedness with which they were carried out, together with his or her accomplices; 2° the individual who committed acts of torture against others, even though they did not result into death, together with his or her accomplices; 3° the individual who committed dehumanising acts on the dead body, together with his or her accomplices.
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Thus, the second category included the following suspects: 1. the well-known murderer who distinguished himself or herself in the area where he or she lived or wherever he or she passed, because of the zeal which characterised him or her in the killings or excessive wickedness with which they were carried out, together with his or her accomplices; 2. the individual who committed acts of torture against others, even though they did not result into death, together with his or her accomplices; 3. the individual who committed dehumanising acts on the dead body, together with his or her accomplices. 4. the individual whose criminal acts or criminal participation place among the killers or perpetrators of serious violence against others, causing death, together with his or her accomplices; 5. the individual who injured or committed other acts of serious violence, with intention to kill them, but who did not attain his or her objective, together with his or her accomplices; 6. the individual who committed or participated in criminal acts against individuals, without any intention of killing them, together with his or her accomplices.
Category one remained with the following suspects: 1. The individual whose criminal acts or criminal participation place among planners, organisers, instigators, supervisors and ringleaders of the crime of genocide or crimes against humanity, together with his or her accomplices; 2. the individual who, at that time, was in the organs of leadership, at national, prefecture, sub-prefecture and commune levels, leaders of political parties, members of the high command of the army and gendarmerie, of communal police, leaders of religious denominations, or illegal militia groups and who committed those offences or encouraged other people to commit them, together with his or her accomplices; 3. the individual who committed acts of rape or sexual torture, together with his or her accomplices;
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C. Crimes and penalties according to the Organic Law of 2007
The new Organic Law introduced suspension of sentence in order to reduce the long prison custody to be served by the sentenced individuals. Therefore, for the perpetrators of crimes of the second category who pleaded guilty and whose confession was accepted as well as those of the second category 6o, the execution of the imprisonment penalty had to be done in three successive phases: imprisonment, community services and sentence suspension.
This measure was not sufficient enough to stabilise the number of prisoners which kept increasing. It is in this regard that the Cabinet of Ministers’ Meeting of May 30th 2007 decided that in the execution of the sentences passed by Gacaca Courts, the sentence of the community services had to be executed before the imprisonment.
In order to facilitate the implementation of the Cabinet decision, the NSGC issued the instruction n° 15/2007 of June 1st 200733 which requested Gacaca Courts to precise in their decisions, writing the period to be served in prison custody, the duration to be converted into community services and the suspension of the sentence.
The instruction came out with the diminution of prison custody and the release of the sentenced individuals who successively pleaded guilty before Gacaca Courts so that they could go on serving their penalties in community services; which noticeably reduced the number of prisoners and hence normalised the situation within prisons.
This measure went together with the mobilisation campaign to have the majority of suspects especially those of second category, which had the largest number, resort to the guilty plea procedure. This campaign started in all Districts on February 2nd 2007 and ended on February 16th 2007, but its session continued in all Sectors as well as in detention facilities.
33 URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza nº15/2007 yo ku wa 01/06/2007 y’Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca arebana n’irangizwa ry’ibihanobihabwa umuntu wireze, akemera icyaha, akicuza agasaba imbabazi bikemerwa n’Urukiko Gacaca, Kigali, 2007.
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Table 15: The categories and applicable penalties as provided for by the Organic Law of 2007
Category Charges Sentences according to the Organic Law of 2007 1° 1. An individual whose criminal acts Capital punishment or life or criminal participation place imprisonment them among planners, organisers, (art 13) with permanent deprivation instigators, supervisors and of the right: ringleaders of crimes of genocide to be elected; or crimes against humanity, to become leaders, to serve in together with his or her the armed forces, to serve in the accomplices; National Police and other security organs, to be a teacher, a 2. An individual who, at that time, medical staff, magistrates, public was in the organs of leadership, at prosecutors and judicial national, prefecture, sub-prefecture counsels; and commune levels, leaders of Their names together with a short political parties, members of the description of their identities and the high command of the army and crimes they committed, shall be gendarmerie, of communal police, posted in the history section of the leaders of religious denominations, genocide memorials, at the offices of or illegal militia groups and who their Sectors, registered in their committed those offences or ‘criminal record’ and published on encouraged other people to the Internet”. (Article15). commit them, together with his or her accomplices;
3. An individual who committed acts of rape or sexual torture, together with his or her accomplices;
Refused to confess or whose guilty plea was rejected Pleaded guilty after being included on the A prison sentence ranging from list of suspects twenty five (25) to thirty (30) years
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(art 13) with permanent deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet”. (Article15). Pleaded guilty before being included on A prison sentence ranging from the list of suspects twenty (20) to twenty four (24) years (art 13) with permanent deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the Genocide memorials, at the offices of
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their Sectors, registered in their ‘criminal record’ and published on the internet”. (Article15). 2° 1. A well known murderer who A prison sentence of thirty (30) years distinguished himself or herself in or life imprisonment (art 14) with the area where he or she lived or permanent deprivation of the right: wherever he or she passed, - to be elected; because of the zeal which - to become leaders, to serve in characterised him or her in the the armed forces, to serve in the killings or excessive wickedness National Police and other with which they were carried out, security organs, to be a teacher, a together with his or her medical staff, magistrates, public accomplices; prosecutors and judicial counsels; 2. An individual who committed acts - Their names together with a short of torture against others, even description of their identities and the though they did not result into crimes they committed, shall be death, together with his or her posted in the history section of the accomplices; genocide memorials, at the offices of their Sectors, registered in their 3. The individual who committed ‘criminal record’ and published on dehumanising acts on a dead body, the internet”. (Article15). together with his or her accomplices.
Refused to confess or whose guilty plea was rejected Pleaded guilty after being included on the A prison sentence ranging from list of suspects twenty-five (25) to twenty-nine (29) years, but: a) they serve a third (1/3) of the sentence in custody;
b) a sixth (1/6) of the sentence is suspended;
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c) half (1/2) of the sentence is commuted to community service (Article 14). with deprivation of the right: to be elected; to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; They are deprived of these rights only for the duration of the sentence given by the competent court. Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the Internet”. (Article15). Pleaded guilty before being included on A prison sentence ranging from the list of suspects twenty (20) to twenty-four (24) years, but: d) they serve a sixth (1/6) of the sentence in custody;
e) a third (1/3) of the sentence is suspended;
f) half (1/2) of the sentence is commuted to community service
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(Article 14). with deprivation of the right: to be elected; to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; They are deprived of these rights only for the duration of the sentence given by the competent court. Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet”. (Article15). 4° the individual whose criminal acts or A prison sentence ranging from criminal participation place among the fifteen (15) to nineteen (19) years killers or perpetrators of serious (Article 14) with deprivation of the violence against others, causing death, right: together with his or her accomplices; - to be elected; - to become leaders, to serve in 5° the individual who injured or the armed forces, to serve in the committed other acts of serious National Police and other violence, with intention to kill them, security organs, to be a teacher, a but who did not attain his or her medical staff, magistrates, public objective, together with his or her prosecutors and judicial accomplices counsels; - They are deprived of these rights Refused to confess or whose guilty plea only for the duration of the sentence
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was rejected given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet”. (Article15). Pleaded guilty after being included on the A prison sentence ranging from list of suspects twelve (12) to fourteen (14) years, but: a) they serve a third (1/3) of the sentence in custody; b) a sixth (1/6) of the sentence is suspended; c) half (1/2) of the sentence is commuted to community service (Article 14); with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the
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crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet”. (Article15). A prison sentence ranging from eight Pleaded guilty before being included on (8) to eleven (11) years, but: the list of suspects a) they serve a sixth (1/6) of the sentence in custody; b) a third (1/3) of the sentence is suspended;
c) half (1/2) of the sentence is commuted to community service (Article 14); with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of
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their Sectors, registered in their ‘criminal record’ and published on the internet”. (Article15).
6° The individual who committed or A prison sentence ranging from five participated in criminal acts against (5) to seven (7) years, but: people, without any intention of a) they serve a third (1/3) of killing them, together with his or her the sentence in custody; accomplices. b) a sixth (1/6) of the sentence is suspended; Refused to confess or whose guilty plea was rejected c) half (1/2) of the sentence is commuted to community service (Article 14); with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the Internet”. (Article15).
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Pleaded guilty after being included on the A prison sentence ranging from three list of suspects (3) to four (4) years, but: a) they serve a third (1/3) of the sentence in custody; b) a sixth (1/6) of the sentence is suspended; a) half of the sentence is commuted to community service; (Article 14); with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet”. (Article15).
Pleaded guilty before being included on A prison sentence ranging from one
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the list of suspects (1) to two (2) years, but; a) a sixth (1/6) of the sentence in custody; b) a third (1/3) of the sentence is suspended; c) half (1/2) of the sentence is commuted to community service (Article 14) with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet”. (Article15). 3° Damage to property Civil compensation
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Table 16: Penalties applicable to minors
Category Charges Sentences according to the Organic Law of 2007
1° 1. The individual whose criminal A prison sentence ranging from ten acts or criminal participation (10) to twenty (20) years (art 16) with place them among planners, permanent deprivation of the right: organisers, instigators, - to be elected; supervisors and ringleaders of - to become leaders, to serve in the crimes of genocide or crimes armed forces, to serve in the against humanity, together with National Police and other security his or her accomplices; organs, to be a teacher, a medical staff, magistrates, public 2. the individual who, at that time, prosecutors and judicial counsels; was in the organs of leadership, - Their names together with a short at national, prefecture, sub- description of their identities and the prefecture and commune levels, crimes they committed, shall be posted leaders of political parties, in the history section of the Genocide members of the high command memorials, at the offices of their of the army and gendarmerie, of Sectors, registered in their ‘criminal communal police, leaders of record’ and published on the Internet”. religious denominations, or (Article15). illegal militia groups and who committed those offences or encouraged other people to commit them, together with his or her accomplices;
3. the individual who committed acts of rape or sexual torture, together with his or her accomplices;
Refused to confess or whose guilty plea was rejected
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Pleaded guilty after being included on A prison sentence ranging from eight the list of suspects (8) to nine (9) years (art 16) with permanent deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet”. (Article15).
Pleaded guilty before being included on A prison sentence ranging from six (6) the list of suspects years and six (6) months to seven (7) years and six (6) months (art 16) with permanent deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the Genocide
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memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet”. (Article15).
2° 1. A well known murderer who A prison sentence ranging from ten distinguished himself or herself (10) to fifteen (15) years (art 16) with in the area where he or she lived permanent deprivation of the right: or wherever he or she passed, - to be elected; because of the zeal which - to become leaders, to serve in the characterised him or her in the armed forces, to serve in the killings or excessive National Police and other security wickedness with which they organs, to be a teacher, a medical were carried out, together with staff, magistrates, public his or her accomplices; prosecutors and judicial counsels; - Their names together with a short 2. the individual who committed description of their identities and the acts of torture against others, crimes they committed, shall be posted even though they did not result in the history section of the genocide into death, together with his or memorials, at the offices of their her accomplices; Sectors, registered in their ‘criminal record’ and published on the internet”. 3. the individual who committed (Article15). dehumanising acts on a dead body, together with his or her accomplices.
Refused to confess or whose guilty plea was rejected Pleaded guilty after being included on A prison sentence ranging from six (6) the list of suspects years and six (6) months to seven (7) years and six (6) months, but: a) they serve a third (1/3) of the sentence in custody;
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b) a sixth (1/6) of the sentence is suspended; c) half (1/2) of the sentence is commuted to community service (Article 16). with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court.
- Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet”. (Article15).
Pleaded guilty before being included on A prison sentence ranging from six (6) the list of suspects to seven (7) years, but:
a) they serve a sixth (1/6) of the sentence in custody;
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b) a third (1/3) of the sentence is suspended;
c) half (1/2) of the sentence is commuted to community service (Article 16).
with deprivation of the right:
- to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels;
- They are deprived of these rights only for the duration of the sentence given by the competent court.
- Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet”. (Article15). 4 the individual whose criminal A prison sentence ranging from four acts or criminal participation (4) and six (6) months to five (5) years place among the killers or and six months (Article 16) with perpetrators of serious violence deprivation of the right: against others, causing death, together with his or her - to be elected;
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accomplices; - to become leaders, to serve in the armed forces, to serve in the 5 the individual who injured or National Police and other security committed other acts of serious organs, to be a teacher, a medical violence, with intention to kill staff, magistrates, public them, but who did not attain his prosecutors and judicial counsels; or her objective, together with his or her accomplices; - They are deprived of these rights only for the duration of the sentence given by the competent court.
Refused to confess or whose guilty plea - Their names together with a short was rejected description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the Internet”. (Article15). Pleaded guilty after being included on A prison sentence ranging from four the list of suspects (4) to five (5) years, but:
a) they serve a third (1/3) of the sentence in custody; b) a sixth (1/6) of the sentence is suspended; c) half (1/2) of the sentence is commuted to community service (Article 16); with deprivation of the right:
- to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security
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organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the Internet”. (Article15).
A prison sentence ranging from two (2) Pleaded guilty before being included on years and six (6) months to three (3) the list of suspects years and six (6) months, but:
a) they serve a sixth (1/6) of the sentence in custody; b) a third (1/3) of the sentence is suspended; c) half (1/2) of the sentence is commuted to community service (Article 16); with deprivation of the right:
- to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels;
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- They are deprived of these rights only for the duration of the sentence given by the competent court.
- Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the Internet”. (Article15). 6 the individual who committed A prison sentence ranging from two (2) or participated in criminal acts years and six (6) months to three (3) against people, without any years and six (6) months but half (1/2) intention of killing them, of the sentence is served in prison and together with his or her another half commuted to community accomplices. service (Article 16); with deprivation of the right: - to be elected; Refused to confess or whose guilty plea - to become leaders, to serve in the was rejected armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court.
- Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide
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memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet”. (Article15). Pleaded guilty after being included on A prison sentence ranging from one (1) the list of suspects year and six (6) months to two (2) years and six (6) months, but: a) they serve a third (1/3) of the sentence in custody; b) a sixth (1/6) of the sentence is suspended; c) half of the sentence is commuted to community service; (Article 16); with deprivation of the right:
- to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels;
- They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet”. (Article15).
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Pleaded guilty before being included on A prison sentence ranging from six (6) the list of suspects months to one (1) year and six (6) months, but: a) a sixth (1/6) of the sentence in custody; b) a third (1/3) of the sentence is suspended; c) half (1/2) of the sentence is commuted to community service (art 16) with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet”. (Article15). 3° Damage to property Civil compensation
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D. Review of Genocide cases judgments
According to the Organic Law of 2007, a judgment passed by a Gacaca or Ordinary Court can be reviewed. A judgement can be subject to review if:
1° a person was acquitted in a judgement passed in the last resort by an Ordinary Court, but is thereafter found guilty by a Gacaca Court; 2° a person was convicted in a judgement passed in the last resort by an Ordinary Court, but is thereafter found innocent by a Gacaca Court; 3° a judgement was passed in the last resort by a Gacaca Court, and later on there is new evidence contrary to what the initial judgment of that Gacaca Court was grounded; 4° an individual was given a sentence that is contrary to legal provisions of the charges against him or her.
1. Review of judgements passed by Gacaca Courts
A judgment determined by a Gacaca Court can be reviewed if it was determined in the last appellate level and later on there is new evidence contrary to what the initial judgment of that Gacaca Court was grounded on. In order to clarify more about the procedure of reviewing judgment in Gacaca Courts, the NSGC issued the Instruction no 12/2007 of 15/03/200734 which provides in its article 4 that the request for a review of judgment is done through a letter addressed to the President of the General Assembly of the Sector to which the Gacaca Court that handled the case at the last level belongs. In article 6 and 7, the President of the afore-mentioned General Assembly of “Inyangamugayo” judges invites all the members to a meeting and will examine the grounds of the request. The General Assembly appoints the Gacaca Court of Appeal to hear the case if the request is found justified.
In case the General Assembly found the request groundless, the decision of refusal is communicated to the complainant in writing; the General Assembly reserves a copy to inform
34 URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza no 12/2007 yo kuwa 15/03/2007 y’ Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca arebana no gusubiramo imanza zaciwe n’Inkiko Gacaca, Kigali, 2007.
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the NSGC. Note that the latter can intervene, any time if deemed necessary, to advise the General Assembly so as to carry out a deep legal analysis when examining the appeal to review the judgement.
Review of judgements rendered by the Ordinary Courts
As we have mentioned above, Article 93 of Organic Law no 16/2004 of 19/06/2004 allowed Gacaca Courts to review the judgements rendered by Ordinary Courts. In this regard, the instruction no 9/06 of 26/07/200635 ordered Gacaca Courts that reviewing such cases shall start after the closure of other files pending before Gacaca Courts according to the procedure to be defined by NSGC in a specific directive.
Meanwhile, as provided in article 24 of organic law no 13/2008 of 19/05/2008 mentioned below, Gacaca Courts do not have this competence: a case judged at the highest appellate level by an Ordinary or Military Court may also be reviewed by the same Court. This provision automatically removes the competence from Gacaca Courts to review decisions concerning Genocide cases passed by regular courts. This article goes on to show cases that can be reviewed before Gacaca Courts:
1° it was judged at the highest appellate level of a Gacaca Court and later new evidence contradicting what it was based on is discovered; 2° The accused was given a sentence that is inconsistent with the law.
A judgement definitively determined by a Gacaca Court cannot be reviewed before Ordinary or Military Court. In the same way, a decision definitively rendered by an Ordinary or Military Court at the last appellate level cannot be subject to review before Gacaca Court. This is provided for in article 24 mentioned above: “the Gacaca Court of Appeal is the only competent
35 URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza nº9/2006 yo ku wa 26/07/2006 y’Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca arebana no gusubiramo imanza zaciwe n’Inkiko zisanwe, Kigali, 2006.
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Court to review a case that was fully tried by another Gacaca Court. A case judged at the highest appellate level by an Ordinary or Military court may also be reviewed by the same Court”.
E. Implementation of the Organic Law of 2007
Like in the past, activities of Gacaca Courts were suspended for some days, after the publication of this Organic Law of 2007 for the training of “Inyangamugayo” Judges on its innovations and the related instructions issued by the NSGC.
These trainings took place from 15th March to 5th April 2007 and were organized only for “Inyangamugayo” Judges of Sector and Appeal Gacaca Courts. The multiplication and the distribution of the booklets containing the new Organic Law took some time which led some Gacaca Courts to continue their activities and determined cases basing on the old Organic Law. To provide a remedy to this irregularity, the NSGC issued Instruction no 13/2007 of 20/03/200736 that provided for Gacaca Courts guidance on how to apply the Organic Law of 2007 on the decisions taken beginning from the 03rd March 2007. In this case article 3 of the above mentioned instruction provides that all the decisions rendered by Gacaca Courts of the Sector and Appeal, after the publication of Organic Law no 10/2007, should comply with the provisions of the latter, without rehearing the cases.
36 URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza nº13/2007 yo ku wa 20/03/2007 y’Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca agamije gufasha Inkiko Gacaca gushyira mu bikorwa ibiteganywa n’Itegeko Ngenga no 10/2007 ryo ku wa 01/03/2007rihindura kandi ryuzuza Itegeko Ngenga n° 16/2004 ryo kuwa 19/6/2004 rigena imiterere, ububasha n’imikorere by’Inkiko Gacaca zishinzwe gukurikirana no gucira imanza abakoze ibyaha bya jenoside n’ibindi byaha byibasiye inyokomuntu byakozwe hagati y’itariki ya mbere Ukwakira 1990 n'iya 31 Ukuboza 1994 nk’uko ryahinduwe kandi ryujujwe kugeza ubu, Kigali, 2007.
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Section 3: Amendment of 19/05/2008 on the Organic Law of 2004
Although the results of Gacaca Courts were undeniably satisfying, the files of the first category and those pending before Ordinary and Military Courts constituted a challenge to address. In this case, it was necessary to amend again the Organic law n° 16/2004 of 19/6/2004 governing the organisation, jurisdiction and functioning of Gacaca Courts37. This amendment mainly touched the following:
1. The modalities of accelerating cases suspects of the first category; 2. The solution to Genocide files pending before Ordinary and Military Courts which have not been definitively determined at the high appellate level ; The execution of a prison sentence for those who confessed and pleaded guilty; 3. The prosecution of crimes constituting Genocide and other crimes against humanity after the closure of the activities of Gacaca Courts;
§1. Modalities to speed up first category trials
In order to speed up first category trials, the amendment of 2008 extended the jurisdiction of Gacaca Courts to some crimes of the first category. According to article 9, those accused of the following fall under the jurisdiction of Gacaca Courts.
1° The individual who committed or was an accomplice in committing an offence that puts him or her among the category of people who incited , supervised and ringleaders of the Genocide or crimes against humanity; 2° The individual who was in a leadership position at the Sub-Prefecture and Commune: public administration, political parties, army, gendarmerie, communal police, religious denominations or in militia, who committed any crimes of genocide or other crimes against
37 Organic Law n° 13/2008 of 19/05/2008 modifying and complementing Organic Law n° 16/2004 of 19/06/2004 establishing the organisation, jurisdiction 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 as modified and complemented to date, O.G.R.R n° 11 of 01/06/2008.
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humanity or encouraged others to commit similar offences, together with his or her accomplice; 3° The individual who committed the offence of rape or sexual torture, together with his or her accomplice.
Suspects of the first category who remained in the jurisdiction of the ordinary and military courts are: 1° the individual who committed or was an accomplice in committing an offence that puts him or her in the category of planners or organisers of the Genocide or crimes against humanity;
2° the individual who was at a National leadership level and that of the Prefecture level: public administration, political parties, army, gendarmerie, religious denominations or in militia group, and committed crimes of genocide or crimes against humanity or encouraged others to participate in such crimes, together with his or her accomplices.
A. Crimes and their sentences according to the Organic Law of 2008
The crimes which fall under the jurisdiction of Gacaca Courts are those which are linked to the implementation of the Genocide plan that was committed publically and to which the population testifies. Due to this fact, “Inyangamugayo” judges could not have problems in the hearings. This means that crimes which remained under the jurisdiction of Ordinary and Military Courts are mainly related to the planning and organisation of Genocide or crimes which were committed by high ranking leaders for which the population does not have enough information. We should note that before the amendment of May 19th 2008, Gacaca Courts were only competent for 2nd and 3rd category crimes.
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Table 17: The categories and their corresponding penalties according to the Organic Law of 2008 Category Charges Sentences 1° 1° any individual who committed or Life imprisonment with special provisions was an accomplice in committing an as well as permanent deprivation of the offence that puts him or her in the right: category of planners or organisers of to be elected; the Genocide or crimes against to become leaders, to serve in the armed humanity. forces, to serve in the National Police and 2° any individual who was at a other security organs, to be a teacher, a national leadership level and that of medical staff, magistrates, public the prefecture level: public prosecutors and judicial counsels; administration, political parties, Their names together with a short army, gendarmerie, religious description of their identities and the denominations or in militia group, crimes they committed, shall be posted on and committed crimes of genocide the history section of the Genocide or crimes against humanity or memorials, at the offices of their Sectors, encouraged others to participate in registered in their ‘criminal record’ and such crimes, together with his or her published on the internet. accomplice; 3° any individual who committed or was an accomplice in committing an offence that puts him or her in the category of people who incited , supervised and ringleaders of the genocide or crimes against humanity; 4° any individual who was at the leadership level at the Sub- Prefecture and Commune: public administration, political parties,
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army, gendarmerie, communal police, religious denominations or in militia, who committed any crimes of Genocide or other crimes against humanity or encouraged others to commit similar offences, together with his or her accomplice; 5° any individual who committed the offence of rape or sexual torture, together with his or her accomplice. Refused to confess or whose guilty plea was rejected. pleaded guilty after being put on the A prison sentence ranging from twenty five list of suspects (25) to thirty (30) years with permanent deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels;
- Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet. pleaded guilty before being put on A prison sentence ranging from twenty
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the list of suspects (20) to twenty four (24) years with permanent deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet.
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2° 1. the well known murderer who A prison sentence of thirty (30) years or distinguished himself or herself life imprisonment with permanent in the area where he or she lived deprivation of the right: or wherever he or she passed, - to be elected; because of the zeal which - to become leaders, to serve in the characterised him or her in the armed forces, to serve in the National killings or excessive wickedness Police and other security organs, to be with which they were carried a teacher, a medical staff, magistrates, out, together with his or her public prosecutors and judicial accomplices; counsels; 2. the individual who committed - Their names together with a short acts of torture against others, description of their identities and the even though they did not result crimes they committed, shall be posted in into death, together with his or the history section of the genocide her accomplices; memorials, at the offices of their Sectors, 3. the individual who committed registered in their ‘criminal record’ and dehumanising acts on a dead published on the internet. body, together with his or her accomplices.
Refused to confess or whose guilty plea was rejected. pleaded guilty after being put on the A prison sentence ranging from twenty five list of suspects (25) to twenty-nine (29) years, but: a) they serve a third (1/3) of the sentence in custody; b) a sixth (1/6) of the sentence is suspended; c) half (1/2) of the sentence is commuted to community service.
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with deprivation of the right:
- to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet.
Pleaded guilty before being put on A prison sentence ranging from twenty the list of suspects (20) to twenty-five (25) years, but: a) they serve a sixth (1/6) of the sentence in custody;
b) a third (1/3) of the sentence is suspended;
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c) half (1/2) of the sentence is commuted to community service
with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet. 4. the individuals whose criminal A prison sentence ranging from fifteen (15) acts or criminal participation to nineteen (19) years with deprivation of place them among the killers or the right: perpetrators of serious violence - to be elected; against others, causing death, - to become leaders, to serve in the together with his or her armed forces, to serve in the National accomplices; Police and other security organs, to be a teacher, a medical staff, magistrates, 5. the individual who injured or public prosecutors and judicial committed other acts of serious counsels;
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violence, with intention to kill them, but who did not attain his They are deprived of these rights only for or her objective, together with the duration of the sentence given by the his or her accomplices; competent court.
Their names together with a short description of their identities and the Refused to confess or whose guilty crimes they committed, shall be posted in plea was rejected the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet. Pleaded guilty after being put on the A prison sentence ranging from twelve list of suspects (12) to fourteen (14) years, but:
a) they serve a third (1/3) of the sentence in custody; b) a sixth (1/6) of the sentence is suspended; c) half (1/2) of the sentence is commuted to community service (Article 14); with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for
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the duration of the sentence given by the competent court. Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet. Pleaded guilty before being put on A prison sentence ranging from twenty the list of suspects (20) to twenty four (24) years, but: a) they serve a sixth (1/6) of the sentence in custody; b) a third (1/3) of the sentence is suspended; c) half (1/2) of the sentence is commuted to community service; with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in
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the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the Internet. 6. The individual who committed A prison sentence ranging from five (5) to or participated in criminal acts seven (7) years, but: against people, without any a) they serve a third (1/3) of the intention of killing them, sentence in custody; together with his or her b) a sixth (1/6) of the sentence is accomplices. suspended; c) half (1/2) of the sentence is commuted to community service; Refused to confess or whose guilty with deprivation of the right: plea was rejected - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the Genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the Internet.
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Pleaded guilty after being included A prison sentence ranging from three (3) to on the list of suspects four (4) years, but: a) they serve a third (1/3) of the sentence in custody; b) a sixth (1/6) of the sentence is suspended; c) half of the sentence is commuted to community service; with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the Genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet. Pleaded guilty before being included A prison sentence ranging from one (1) to on the list of suspects two (2) years, but; d) a sixth (1/6) of the sentence in custody; e) a third (1/3) of the sentence is
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suspended; f) half (1/2) of the sentence is commuted to community service. with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the Genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet. 3° Damage to property Civil compensation
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Table 18: The penalties applicable to minors aged more than fourteen (14) years and less than eighteen (18) when the crime was committed. Category Charges Sentences according to the law of 2007 1° 1° any individual who committed A prison sentence ranging from ten (10) to or was an accomplice in twenty (20) years (article 16) with permanent committing an offence that puts deprivation of the right: him or her in the category of to be elected; to become leaders, to serve in planners or organisers of the the armed forces, to serve in the National Genocide or crimes against Police and other security organs, to be a humanity. teacher, a medical staff, magistrates, public 2° any individual who was at a prosecutors and judicial counsels; national leadership level and that Their names together with a short description of the prefecture level: public of their identities and the crimes they administration, political parties, committed, shall be posted in the history army, gendarmerie, religious section of the Genocide memorials, at the denominations or in militia group, offices of their Sectors, registered in their and committed crimes of genocide ‘criminal record’ and published on the or crimes against humanity or internet. encouraged others to participate in such crimes, together with his or her accomplice; 3° any individual who committed or was an accomplice in committing an offence that puts him or her among the category of people who incited , supervised and ringleaders of the genocide or crimes against humanity; 4° any individual who was at the leadership level at the Sub- Prefecture and Commune: public
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administration, political parties, army, gendarmerie, communal police, religious denominations or in militia, who committed any crimes of genocide or other crimes against humanity or encouraged others to commit similar offences, together with his or her accomplice;
5° any individual who committed the offence of rape or sexual torture, together with his or her accomplice.
Refused to confess or whose guilty plea was rejected
Pleaded guilty after being included A prison sentence ranging from eight (8) to on the list of suspects nine (9) years (article 16) with permanent deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the
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offices of their Sectors, registered in their ‘criminal record’ and published on the Internet. Pleaded guilty before being A prison sentence ranging from six (6) years included on the list of suspects and six (6) months to seven (7) years and six (6) months with permanent deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; -Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the Genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the Internet.
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2° 1. the well known murderer who A prison sentence ranging from ten (10) to distinguished himself or fifteen (15) years with permanent deprivation herself in the area where he or of the right: she lived or wherever he or she to be elected; passed, because of the zeal to become leaders, to serve in the armed which characterised him or her forces, to serve in the National Police and in the killings or excessive other security organs, to be a teacher, a wickedness with which they medical staff, magistrates, public prosecutors were carried out, together with and judicial counsels; his or her accomplices; Their names together with a short description of their identities and the crimes they 2. the individual who committed committed, shall be posted in the history acts of torture against others, section of the Genocide memorials, at the even though they did not result offices of their Sectors, registered in their into death, together with his or ‘criminal record’ and published on the her accomplices; Internet.
3. the individual who committed dehumanising acts on a dead body, together with his or her accomplices.
Refused to confess or whose guilty plea was rejected. Pleaded guilty after being included A prison sentence ranging from six (6) years on the list of suspects and six (6) months to seven (7) years and six (6) months, but: a) they serve a third (1/3) of the sentence in custody; b) a sixth (1/6) of the sentence is suspended; c) half (1/2) of the sentence is commuted to
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community service with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet. Pleaded guilty before being A prison sentence ranging from six (6) to included on the list of suspects seven (7) years, but: a) they serve a sixth (1/6) of the sentence in custody; b) a third (1/3) of the sentence is suspended; c) half (1/2) of the sentence is commuted to community service (Article 16). with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a
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medical staff, magistrates, public prosecutors and judicial counsels; They are deprived of these rights only for the duration of the sentence given by the competent court. Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet. 4. the individuals whose criminal A prison sentence ranging from four (4) and acts or criminal participation six (6) months to five (5) years and six (6) place them among the killers months with deprivation of the right: or perpetrators of serious - to be elected; violence against others, - to become leaders, to serve in the armed causing death, together with forces, to serve in the National Police and his or her accomplices; other security organs, to be a teacher, a medical staff, magistrates, public prosecutors 5. the individual who injured or and judicial counsels; committed other acts of serious - They are deprived of these rights only for violence, with intention to kill the duration of the sentence given by the them, but who did not attain competent court. his or her objective, together with his or her accomplices; - Their names together with a short description of their identities and the crimes Refused to confess or whose guilty they committed, shall be posted in the history plea was rejected section of the Genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the
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internet. Pleaded guilty after being included A prison sentence ranging from four (4) to on the list of suspects five (5) years, but: a) they serve a third (1/3) of the sentence in custody; b) a sixth (1/6) of the sentence is suspended; c) half (1/2) of the sentence is commuted to community service with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels; - They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the Genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet. Pleaded guilty before being A prison sentence ranging from two (2) years included on the list of suspects and six (6) months to three (3) years and six (6) months, but: a) they serve a sixth (1/6) of the sentence in custody;
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b) a third (1/3) of the sentence is suspended; c) half (1/2) of the sentence is commuted to community service with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels;
They are deprived of these rights only for the duration of the sentence given by the competent court.
Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the Genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet.
6. the individual who committed A prison sentence ranging from two (2) years or participated in criminal acts and six (6) months to three (3) years and six against people, without any (6) months but intention of killing them, a) serve a third (1/3) of the sentence together with his or her in custody; accomplices. b) have a sixth (1/6) of the sentence suspended;
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c) have half (1/2) of the sentence Refused to confess or whose guilty commuted to community service plea was rejected with deprivation of the right: - to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels;
They are deprived of these rights only for the duration of the sentence given by the competent court.
Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the Genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet. Pleaded guilty after being included A prison sentence ranging from one (1) year on the list of suspects and six (6) months to two (2) years and six (6) months, but: a) they serve a third (1/3) of the sentence in custody; b) a sixth (1/6) of the sentence is suspended; c) half of the sentence is commuted to community service; with deprivation of the right:
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- to be elected; - to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels;
They are deprived of these rights only for the duration of the sentence given by the competent court.
Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the Genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet. Pleaded guilty before being A prison sentence ranging from six (6) included on the list of suspects months to one (1) year and six (6) months, but: a) a sixth (1/6) of the sentence in custody; b) a third (1/3) of the sentence is suspended; c) half (1/2) of the sentence is commuted to community service; with deprivation of the right: - to be elected; - to become leaders, to serve in the armed
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forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels;
- They are deprived of these rights only for the duration of the sentence given by the competent court. - Their names together with a short description of their identities and the crimes they committed, shall be posted in the history section of the Genocide memorials, at the offices of their Sectors, registered in their ‘criminal record’ and published on the internet. 3° Damage to property Civil compensation
B. Special consideration on the crime of rape or sexual torture
The transfer of files of first category to Gacaca Courts was done when the latter were approaching the closure of the trials of second and third categories. In this regard, the NSGC decided to concentrate all efforts to the cases of the first category and those transferred from the Ordinary courts due to their particular nature. This particularity was also noticed by the legislator by providing special measures especially for the crime of rape or sexual torture. This crime affects the intimacy of the victims. This crime affects the intimacy and privacy of a person. This is why a special procedure was provided to prosecute and try these crimes.
Article 6 of the above mentioned law provided that, to launch a claim against the perpetrators of these crimes, the victim can directly submit his or her complaint to the sector Gacaca Court of the area where the crime was committed, or to the Judicial Police or the Prosecution Officer. This helps the victims of these crimes, who do not want to expose themselves to the public, to
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escape from Gacaca Courts common procedure of submitting files publicly through the data collection in the General Assembly of the Cell. In case the victim is dead or is incapacitated to lodge such a complaint, any concerned person may secretly do so. It is prohibited to publicly confess this crime or to publicly initiate proceedings against another.
All formal proceedings related to the above offences shall be held on camera. In order to provide a strong protection to victims of these crimes, the law prohibits the members of the Bench from revealing secrets of camera proceedings. According to article 5, every member of the Gacaca Court Bench who will have revealed the secret of in camera hearing, must be dismissed from his or her office, prosecuted and sentenced to one to three years of imprisonment.
In order to ensure a good start of the hearings in this final phase, the NSGC organised a general training on the new Organic Law. It was followed by another specific training organised by NSGC in collaboration with ILPD (Institute of Legal Practice and Development) to build the capacity of “Inyangamugayo” Judges selected for the hearing of cases of 1st category including rape and sexual torture.
The training focused only on the trials of rape and sexual torture (legal provisions, trial procedure and psychological assistance of the victims of these crimes). The training took place from July to September 2008. In this scope, the NSGC issued instruction no 16/2008 of 0506/200838 emphasizing on the trials of the first category in general and sexual torture in particular. In order to ensure the secrecy of the hearings held in camera, article 12 of this instruction limits the power to examine the grounds of the claims in review of judgement related to sexual torture to only members of Gacaca Courts of the Sector and Appeal who heard these cases and not the entire General Assembly of the Sector.
38 URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza nº16/2008 yo ku wa 05/06/2008 y’Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca arebana n’imanza z’abaregwa ibyaha bya jenoside n’ibindi byaha byibasiye inyokomuntu byo mu rwego wa mbere, imanza za jenoside zizava mu nkiko zisanzwe n’iza Gisirikare no gusubiramo imanza mu Nkiko Gacaca, Kigali, 2008.
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2. Genocide files pending before Ordinary and Military Courts
The amendment of 19th May 2008 allowed the transfer of some files that had not been judged at the final level from ordinary and military courts to Gacaca Courts. In fact the capacity of Gacaca Courts regarding speeding up cases was undeniable. This assertion is of course upheld by the progress already made by Gacaca Courts which guarantees the competence to carry out even the trials of category one cases.
According to article 26, the trials of Genocide cases relevant to the jurisdiction of Gacaca Courts that were pending before Ordinary and Military Courts were tried by Gacaca Courts in the following way: 1° cases before the Higher Instance and Military Courts where no decision has been taken on the highest appellate level, shall be tried in the first instance by the Sector Gacaca Courts where the offence was committed;
2° Appeal cases before the High Court and the Military High Court where no decision on the highest appellate level has been taken shall be tried by the Gacaca appeal court where the offence was committed;
3. Cases judged by the High court and Military Court and time within which to lodge an appeal has not yet expired, shall be appealed and tried in the Gacaca appeal court where the offence was committed.
4° Cases before the Supreme Court and no final decision has been taken shall be tried in the last instance by the Gacaca appeal Court where the offence was committed.
5. Cases heard by the High Court of Republic and the Military High Court and time within which to lodge an appeal has not yet expired, shall be tried and appealed against in the Gacaca Court of Appeal where the offence was committed.
To all files transferred to Gacaca Courts was attached a brief summary which helped “Inyangamugayo” Judges in their examination. The summary showed among others the parties, charges, witnesses, the level of instance, the transferring court and the destination Court. The summary was elaborated in two copies; one copy was for the Court that sent the files.
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The organs in charge of investigation and judicial prosecution have since then forwarded files to the competent Gacaca courts which fell under their jurisdiction in accordance with the provisions of the Organic Law no 13/2008. In the same way, Gacaca Courts started transferring of the category one files which were within the competence of Ordinary and Military Courts.
3. Execution of the prison sentence to persons who pleaded guilty
Any person convicted of the genocide crime or crimes against humanity is sentenced to a prison term except suspects of the third category. The modalities of its implementation depend on whether the sentenced person has pleaded guilty or not.
The article 21 provides that a person sentenced to a custodial sentence, sentence suspension and community service shall first serve community service and if it is proved that the work was exemplary executed, then, the custodial sentence shall be commuted to community service. However, where it is not possible to immediately start community service, time spent while waiting shall be taken into account when considering the period for a suspended sentence.
Where an individual sentenced to carry out community service or is on a suspended sentence, ceases to perform to his or her expectation, the offender shall be taken to serve the remaining custodial sentence imposed by the competent Court. Where an offender has to be taken to prison to serve a term of imprisonment on account of bad behaviour , the community service committee of the place where the offender was doing his or her activities, shall prepare a report about his or her conduct and submit it to the Gacaca Court which tried the offender in the last instance or the Gacaca Court of the same jurisdiction where community service is done or to the Court of the Lower Instance if Gacaca Courts have completed their activities for purposes of confirming the imprisonment.
Where an offender has to be taken to prison to serve an imprisonment term, on account of the bad behaviour while serving a suspended sentence, the National Police shall prepare a report on his or her conduct and submit it to the Prosecution Service which refers to it requesting the Gacaca Court which tried the concerned person as the court of last resort. Alternatively, the
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Gacaca Court of the place where he or she resides but with the same jurisdiction as the Gacaca Court which tried him or her as the court of last resort, or to the Lower Instance Court, if Gacaca Courts have completed their activities, which orders imprisonment. However, if a person is serving community service as a sentence or is on a suspended sentence and is convicted of another crime, the period the offender had served on community service or on suspended sentence, shall become void and the offender shall serve the total sentence in prison and shall also be prosecuted for the new committed crime.
However, where a person is not found guilty of the new offence, he/she shall be released to serve the remaining period of community service sentence or suspended sentence taking into consideration the time spent in prison.
4. Prosecution and trial of crimes of Genocide and other crimes against humanity after winding up and closure of Gacaca Courts activities
The task to prosecute and try the perpetrators of Genocide and other crimes against humanity committed in Rwanda between October 1st 1990 and December 31st 1994 will go on even after the closure of Gacaca Courts activities. The NSGC is committed to strengthen much more the smooth running of hearings in order to wind up and also organise the ceremonies of official closure. Although Gacaca Courts have enormously contributed to the handling of Genocide cases, none can affirm that all the perpetrators of Genocide have been identified and tried.
In this regard, article 25 of Organic Law no 13/2008 of 19/05/2008 clarified the situation as follows: “Crimes of Genocide and other crimes against humanity identified after winding up and closure of Gacaca courts shall be prosecuted and tried by Ordinary and Military Courts applying the Ordinary Rules of Procedure but without prejudice to application of special provisions provided for by Organic Law n°16/2004 of 19/6/2004” This is based on the principle that crimes related to Genocide are not time-barred as stipulated in the same provision as follows: “prosecution and punishment for crimes related to genocide or crimes against humanity shall not be time- barred”.
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Section 4: Motivation of “inyangamugayo”
In order to facilitate “Inyangamugayo” Judges to easily fulfil their noble and heavy task of reconciling Rwandans throughout the Gacaca process, the Government of Rwanda in collaboration with partners of the justice Sector39, carried out initiatives aiming at improving well being of “Inyangamugayo” judges.
The efforts of “Inyangamugayo” judges are immeasurable. In this regards priorities have been identified: health care ranked in first place, transport means, communication, revenue generating activities and many others.
Since 2002, the Government has been paying contribution of the medical insurance fund for each “Inyangamugayo” family; 5 individuals per family. The Government continued to pay the medical insurance for “Inyangamugayo” until the end of the process. The total amount allocated to this activity is 3.800.348.174 Rwf.
Besides the medical insurance, the Government through the support of the Beligium Technical Coorperation (BTC), reduced the problem of transport for “Inyangamugayo” during their daily Gacaca Courts’ activities. In this regard, at the end of 2007, each Gacaca Court received a brand new bicycle to facilitate them, among others, to carry out investigations or distributing summons in distant places.
“Assisted by the same partner, the question of accessing information was also solved by the distribution of radio receivers to every “Inyangamugayo” Judge. This allowed them to follow, on daily basis, the information concerning the activities of Gacaca Courts. Additionally, there was publishing and distributing of “INKIKO GACACA” newspaper sponsored by the European Union. This newspaper contained news about the activities of Gacaca Courts and facilitated the Judges by learning from the experiences of their colleagues. Also, in order to facilitate
39 Mainly the BTC and the Netherlands.
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communication between “Inyangamugayo” Judges and the NSGC, MTN (an international telecommunication company) granted to the former 20 toll free hotlines.
On revenue generating activities, “Inyangamugayo” Judges were advised to group themselves into cooperatives so as to be assisted collectively. BTC and the Dutch Embassy deserve many thanks for their important contribution in lifting up the living standards of Inyangamugayo judges; cooperatives of “Inyangamugayo” received financial assistance of 1,253,460,000 RWF where each “Inyangamugayo” Judge received 10,000 RWF as start up share for their cooperatives. These cooperatives started their activities and some of their products are already on market. The first cooperative to operate was the one of Musanze District.
To wind up this point, with its limited resources but being aware of the requirements of the work of “Inyangamugayo” Judges, the Government is fully committed to supporting them until the end of their mission.
Section 5. The closure of Gacaca courts activities
The official closure of Gacaca Courts activities was preceded by various preparations including the winding up of all received files, repatriation of the materials of Gacaca Courts and installing the Gacaca Documentation Centre as well as the ceremonies to mark the official closure.
1. Winding up trials
Prior to the proclamation of the official closure of the activities of Gacaca Courts, the latter had first of all closed all Genocide files received. This challenging exercise was realised due to various strategies from the NSGC. Gacaca Courts ended their mandate on the trials of the first category which aroused the attention of everyone and gave rise to controversy and worries for some people. Thus, the NSGC, basing on article 25 and 50 of the Organic Law governing Gacaca Courts designated Gacaca Courts from other courts to handle controversial cases. This measure later on proved to be the most efficient due to the experience of Gacaca Courts
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especially to their independence vis-à-vis to possible influences. Some courts which had a big number of files, on their initiatives, sat several times so as not to disturb the progress of the trials by the delaying postponements. In the same way, the NSGC was concentrating on providing written answers to the population’s requests raised, most of the times, after the refusal of the review of judgement by competent organ.
The NSGC organised meetings at each Sector in order to assess the work done by Gacaca Courts and their image within the community. These meetings were presided by legal officers of the NSGC and grouped together the population, “Inyangamugayo” Judges and local leaders. During these meetings, the population expressed their contentment with the achievements of Gacaca Courts and thanked in advance “Inyangamugayo” Judges for the work done. The same platform was used and whoever had a complaint exposed it publicly and the Legal Officer of NSGC advised on the issues accordingly. These meetings were also serving as an occasion to publicly renounce the indefeasibility of crimes of Genocide and other crimes against humanity and consequently that prosecution and trials will go on even after the closure of the Gacaca Court activities. These meetings preparing the closure of Gacaca Court activities were held between May and July 2009. They were followed by the repatriation of Gacaca Court materials to the Gacaca Documentation Centre.
2. Gacaca Documentation Centre
For the purpose of keeping the memory of the 1994 Genocide and conserving the horrible history of Rwanda, the NSGC put in place a Documentation Centre on Gacaca Courts process. The Documentation Centre comprises of written documentation including all the documents used by Gacaca Courts especially the registers and notebooks used in the data collection, recording notebooks of each Gacaca Courts, the copies of rendered judgements, names of “Inyangamugayo” Judges, etc.
The Centre comprises also of the audio-visual documentation composed of recordings of some trials or pertinent activities. The Centre is endowed with technological conservation system of these materials which also facilitates utilisation. The Centre will also serve as an essential
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database for researches on the 1994 Genocide against the Tutsi and the Gacaca process. Finally, the Centre will be useful for other countries that may adopt a similar system of justice in conflict resolution. Note that the Cabinet meeting of 15th April 2009 has placed the Centre under the National Commission for the Fight against Genocide.
3. The closure of Gacaca Courts activities at the Sector level
The closure of Gacaca Courts proceedings at the administrative sector level depended on the progress of activities like the trial phase and the report of activities by each Gacaca Court. In this regard, after winding up the activities, Inyangamugayo judges, in collaboration with the Executive Secretary of the concerned Sector and the Gacaca Courts Coordinator of that area agreed on the day of official closure of Gacaca courts activities in their sector. The date was thereafter communicated to the NSGC that, in return prepared certificates of merit and medals of honour for Inyangamugayo judges as recognition of the service rendered to the country.
Decorating Inyangamugayo Judges and issuing of certificates of merit took place during the ceremonies organized in the presence of local authorities, security organs and inhabitants of the sector. The pioneer Sector to host this event on the 23rd October 2009 was JURU of Bugesera District, Eastern Province. The decoration of Inyangamugayo judges and issuing of certificates of merit continued to other sectors where the activities of Gacaca Courts had ended. The ceremonies were concluded with conviviality; appreciating the great achievements of Gacaca Courts.
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Tableau 19: The Closure schedule of Gacaca courts activities at the sector level Province District Sector Date of closure City of Kigali NYARUGENGE Mageragere 08/12/2009 Kanyinya 15/02/2010 Kigali 23/03/2010 Nyakabanda 07/05/2010 Rwezamenyo 07/05/2010 Nyamirambo 21/05/2010 Kimisagara 21/05/2010 Gitega 21/05/2010 Nyarugenge 30/05/2010 Muhima 04/06/2010 KICUKIRO Masaka 08/12/2009 Kagarama 08/12/2009 Kicukiro 08/12/2009
Nyarugunga 30/03/2010
Gahanga 05/04/2010
Niboye 30/04/2010 Kanombe 30/04/2010 Gatenga 30/04/2010 Gikondo 18/05/2010 Kigarama 21/05/2010 GASABO Kinyinya 18/12/2009 Gikomero 18/12/2009 Nduba 18/12/2009 Kacyiru 06/04/2010 Gisozi 06/04/2010 Jabana 06/04/2010 Rusororo 06/04/2010
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Bumbogo 06/04/2010 Jali 27/04/2010 Gatsata 30/04/2010 Kimihurura 02/05/2010 Ndera 07/05/2010 Rutunga 08/05/2010 Kimironko 08/05/2010 Remera 14/05/2010 Southern KAMONYI Karama 19/02/2010 Kayumbu 19/02/2010 Kayenzi 20/02/2010 Nyamiyaga 17/03/2010 Ngamba 22/03/2010 Gacurabwenge 31/03/2010 Rukoma 31/05/2010 Musambira 10/05/2010 Runda 18/05/2010 Nyarubaka 18/05/2010 Rugalika 24/05/2010 Mugina 28/05/2010 MUHANGA Rugendabari 04/12/2009
Nyabinoni 04/12/2009
Kabacuzi 04/12/2009
Kibangu 04/12/2009
Rongi 04/12/2009
Shyogwe 02/02/2010
Nyarusange 16/02/2010
Mushishiro 09/03/2010
Cyeza 30/03/2010
Muhanga 06/04/2010
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Nyamabuye 29/04/2010 Kiyumba 29/04/2010 RUHANGO Kinihira 19/02/2010 Byimana 19/02/2010 Mwendo 19/02/2010 Mbuye 19/02/2010 Kabagali 12/03/2010 Ruhango 27/04/2010 Kinazi 11/05/2010 Bweramana 18/05/2010 Ntongwe 28/05/2010 NYANZA Muyira 19/02/2010 Nyagisozi 19/02/2010
Busoro 19/02/2010
Kibirizi 19/02/2010
Ntyazo 19/02/2010
Kigoma 29/03/2010
Rwabicuma 05/04/2010
Mukingo 06/05/2010
Busasamana 06/05/2010
Cyabakamyi 01/06/2010
HUYE Tumba 26/02/2010
Kinazi 26/02/2010
Gishamvu 26/02/2010
Kigoma 05/03/2010
Rusatira 05/03/2010
Simbi 29/01/2010
Mukura 29/01/2010
Rwaniro 29/01/2010
Maraba 29/01/2010
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Ngoma 28/05/2010 Ruhashya 28/05/2010 Mbazi 30/04/2010 Huye 30/04/2010 Karama 26/03/2010 GISAGARA Mamba 12/02/2010 Gikonko 12/02/2010 Musha 12/02/2010 Mukindo 12/02/2010 Muganza 12/02/2010 Gishubi 12/02/2010 Nyanza 12/02/2010 Kigembe 12/02/2010 Kansi 19/02/2010 Kibirizi 05/03/2010 Mugombwa 19/03/2010 Save 14/05/2010 Ndora 27/05/2010 NYAMAGABE Uwinkingi 04/11/2009 Musebeya 04/11/2009 Nkomane 04/11/2009 Buruhukiro 04/11/2009 Kitabi 04/11/2009 Gatare 20/02/2010 Mushubi 25/03/2010 Mbazi 25/03/2010 Kibirizi 14/04/2010 Kamegeri 26/04/2010 Tare 27/04/2010 Kibumbwe 01/05/2010
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Cyanika 01/05/2010 Mugano 05/05/2010 Musange 05/05/2010 Gasaka 11/06/2010 Kaduha 11/06/2010 NYARUGURU Munini 05/11/2009 Kivu 05/11/2009 Muganza 05/11/2009 Nyabimata 05/11/2009 Ngoma 05/11/2009 Ngera 05/02/2010 Nyagisozi 05/02/2010 Mata 05/02/2010 Kibeho 05/02/2010 Cyahinda 05/02/2010 Busanze 05/02/2010 Ruramba 05/02/2010 Ruheru 05/03/2010 Rusenge 05/03/2010 Western NGORORERO Kageyo 08/12/2010 Matyazo 08/12/2010 Muhororo 08/12/2010 Kavumu 18/02/2010 Kabaya 18/02/2010 Ngororero 18/02/2010 Hindiro 18/02/2010 Sovu 31/03/2010 Gatumba 29/04/2010 Muhanda 27/05/2010 Bwira 04/06/2010
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Nyange 04/06/2010 Ndaro 04/06/2010 NYABIHU Jomba 08/12/2009 Mulinga 08/12/2009 Rurembo 08/12/2009 Kintobo 08/12/2009 Rugera 08/12/2009 Kabatwa 08/12/2009 Rambura 02/04/2010 Shyira 02/04/2010 Karago 02/04/2010 Bigogwe 16/03/2010 Mukamira 05/05/2010 Jenda 07/05/2010 RUSIZI Nyakabuye 17/11/2009 Nzahaha 17/11/2009 Bweyeye 17/11/2009 Nkombo 17/11/2009 Gikundamvura 17/11/2009 Bugarama 22/12/2009 Nkungu 22/12/2009 Butare 22/12/2009 Nyakarenzo 28/01/2010 Rwimbogo 28/01/2010 Gitambi 28/01/2010 Nkanka 28/01/2010 Gihundwe 24/03/2010 Kamembe 29/03/2010 Mururu 29/03/2010 Gashonga 09/06/2010
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Giheke 09/06/2010 Muganza 08/07/2010 NYAMASHEKE Shangi 18/11/2009 Nyabitekeri 18/11/2009 Cyato 18/11/2009 Rangiro 18/11/2009 Kilimbi 18/11/2009 Mahembe 18/11/2009 Karambi 22/11/2010 Karengera 29/01/2010 Ruharambuga 29/01/2010 Bushekeri 29/01/2010 Kanjongo 29/01/2010 Macuba 19/03/2010 Bushenge 03/06/2010 Gihombo 03/06/2010 Kagano 05/08/2010 KARONGI Mubuga 27/11/2009 Gishyita 27/11/2009 Twumba 27/11/2009 Gashari 27/11/2009 Ruganda 27/11/2009 Mutuntu 27/11/2009 Rugabano 27/11/2009 Rwankuba 30/03/2010 Murundi 30/03/2010 Murambi 30/03/2010 Gitesi 30/03/2010 Rubengera 02/06/2010 Bwishyura 02/06/2010
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RUTSIRO Musasa 26/11/2010 Murunda 26/11/2010 Rusebeya 26/11/2010 Manihira 26/11/2010 Nyabirasi 26/11/2010 Kigeyo 26/11/2010 Kivumu 26/11/2010 Ruhango 26/11/2010 Mushonyi 26/11/2010 Mushubati 30/03/2010 Mukura 30/03/2010 Boneza 30/03/2010 Gihango 31/05/2010 RUBAVU Rubavu 08/12/2009 Kanama 08/12/2009 Nyamyumba 08/12/2009 Busasamana 08/12/2009 Cyanzarwe 08/12/2009 Bugeshi 06/02/2010 Nyakiriba 16/02/2010 Nyundo 16/02/2010 Kanzenze 16/02/2010 Rugerero 17/02/2010 Mudende 06/04/2010 Gisenyi 29/03/2010 Northern MUSANZE Gashaki 20/11/2009 Busogo 20/11/2009 Gacaca 20/11/2009 Gtaraga 20/11/2009 Kimonyi 20/11/2009
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Kinigi 20/11/2009 Muko 20/11/2009 Musanze 20/11/2009 Nkotsi 20/11/2009 Nyange 20/11/2009 Rwaza 20/11/2009 Cyuve 25/01/2010 Remera 25/01/2010 Shingiro 25/01/2010 Muhoza 24/03/2010 BURERA Cyanika 26/11/2009 Gahunga 26/11/2009 Kinoni 26/11/2009 Butaro 26/11/2009 Kinyababa 26/11/2009 Gitovu 26/11/2009 Rugarama 26/11/2009 Kagogo 26/11/2009 Kivuye 26/11/2009 Gatebe 26/11/2009 Rusarabuye 26/11/2009 Nemba 26/11/2009 Ruhunde 26/11/2009 Rugendabari 26/11/2009 Cyeru 26/11/2009 Rwerere 26/11/2009 Bungwe 26/11/2009 GAKENKE Gashenyi 27/11/2009 Karambo 27/11/2009 Nemba 27/11/2009
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Mataba 27/11/2009 Kamubuga 27/11/2009 Cabingo 27/11/2009 Janja 27/11/2009 Mugunga 27/11/2009 Rusasa 27/11/2009 Kivuruga 19/02/2010 Busengo 19/02/2010 Muzo 19/02/2010 Muyongwe 19/02/2010 Muhondo 19/02/2010 Ruri 19/02/2010 Gakenke 27/05/2010 Minazi 27/05/2010 Coko 08/06/2010 Rushashi 08/06/2010 GICUMBI Mutete 17/12/2009 Rutare 17/12/2009 Muko 17/12/2009 Nyamiyaga 17/12/2009 Ruvune 17/12/2009 Kageyo 17/12/2009 Kaniga 17/12/2009 Miyove 17/12/2009 Rwamiko 17/12/2009 Cyumba 17/12/2009 Byumba 17/12/2009 Bwisige 17/12/2009 Manyagiro 17/12/2009 Mukarange 17/12/2009
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Bukure 17/12/2009 Shangasha 17/12/2009 Nyankenke 17/12/2009 Rubaya 17/12/2009 Rukomo 17/12/2009 Rushaki 17/12/2009 Giti 17/12/2009 RULINDO Ntarabana 05/11/2009 Tumba 05/11/2009 Kinihira 05/11/2009 Masoro 05/11/2009 Kisaro 05/11/2009 Rukozo 05/11/2009 Buyoga 05/11/2009 Cyungo 05/11/2009 Base 05/11/2009 Murambi 18/12/2009 Mbogo 18/12/2009 Rusiga 18/12/2009 Bushoki 18/12/2009 Shyorongi 18/12/2009 Ngoma 18/12/2009 Burega 18/12/2009 Cyinzuzi 18/12/2009 Estern RWAMAGANA Fumbwe 13/11/2009 Nyakariro 13/11/2009 Nzige 13/11/2009 Karenge 13/11/2009 Rubona 05/03/2010 Gahengeri 26/02/2010
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Mwurire 23/04/2010 Muyumbu 30/04/2010 Munyiginya 07/05/2010 Munyaga 14/05/2010 Gishari 10/06/2010 Kigabiro 22/06/2010 Musha 09/06/2010 Muhazi 25/06/2010 NGOMA Sake 09/12/2009 Jarama 09/12/2009 Karembo 09/12/2009 Gashanda 09/12/2009 Rurenge 09/12/2009
Kazo 09/12/2009
Mutenderi 09/12/2009
Rukumberi 30/12/2009
Remera 30/12/2009
Murama 30/12/2009
Rukira 30/12/2009
Mugesera 26/02/2010
Zaza 26/02/2010
Kibungo 02/03/2010
KIREHE Kirehe 12/11/2009
Gahara 12/11/2009
Kigarama 12/11/2009
Musaza 12/11/2009
Nyamugari 12/11/2009
Mahama 12/11/2009
Nasho 12/11/2009
Kigina 31/12/2009
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Mpanga 31/12/2009 Gatore 31/12/2009 Mushikiri 23/02/2010 Nyarubuye 24/02/2010 KAYONZA Murundi 12/02/2010 Rukara 12/02/2010 Murama 22/02/2010 Kabarondo 12/03/2010 Nyamirama 12/03/2010 Gahini 12/03/2010 Mukarange 12/03/2010 Ndego 07/12/2009 Rwinkwavu 07/12/2009
Kabare 07/12/2009
Ruramira 22/01/2010
Mwiri 07/12/2009
GATSIBO Kiziguro 26/01/2010
Muhura 26/01/2010 Kiramuruzi 26/02/2010 Kabarore 04/12/2009 Ngarama 04/12/2009 Murambi 22/01/2010 Rwembogo 04/12/2009 Kageyo 04/12/2009 Nyagihanga 04/12/2009 Rugarama 04/12/2009 Gitoki 04/12/2009 Remera 04/12/2009 Gasange 04/12/2009 Gatsibo 04/12/2009
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NYAGATARE Nyagatare 16/11/2009 Tabagwe 16/11/2009 Rukomo 16/11/2009 Katabagemu 16/11/2009 Gatunda 16/11/2009 Karama 16/11/2009 Kiyombe 16/11/2009 Rwempasha 16/11/2009 Matimba 16/11/2009 Rwimiyaga 16/11/2009 Karangazi 16/11/2009 Musheri 16/11/2009 Mimuri 16/11/2009 Mukama 16/11/2009 BUGESERA Juru 23/10/2009 Shyara 19/11/2009 Rweru 19/11/2009 Mayange 19/11/2009 Nyarugenge 19/11/2009 Gashora 29/01/2010 Kamabuye 19/02/2010 Ngeruka 19/02/2010 Mareba 19/02/2010 Rilima 19/03/2010 Ruhuha 27/05/2010 Nyamata 10/06/2010 Mwogo 10/06/2010 Ntarama 10/06/2010 Musenyi 25/06/2010
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As mentioned above, closure ceremonies at Sector level were concluded by a conviviality function whereby the local leaders, Inyangamugayo and the population got together to celebrate Gacaca Courts achievements.
Section 6: The role of partners in Gacaca courts process
As we mentioned above, if you look back at the situation in Rwanda in the aftermath of the Genocide against the Tutsi, you find that all administrative, legislative and judicial structures at all levels had broken down and the means for their rehabilitation were very limited. It was very difficult to start trying genocide cases throughout the country, but as we said earlier, “where there is a will there is a way”. The will of Rwandans to rebuild their country was the key factor that made it possible to start this difficult task. The top leaders of the country approached various other countries and international organisations, explaining a new innovative way of trying genocide crimes, based on Rwandan traditions and culture. Many among those approached understood quickly and decided to provide their support.
Some countries and some international organisations provided financial and material support through the Gacaca Courts Department within the Supreme Court and later, through the National Service of Gacaca Courts. The funds and materials provided were used especially for the following activities: training of Inyangamugayo judges and others involved in the activities of Gacaca courts, purchase of materials for the courts and the coordinators of their activities, sensitisation of the people for their participation in the Gacaca courts process, capacity building for the staff of the National Service of Gacaca courts, assistance in preparation of the final report on the work done by Gacaca courts, evaluation of the extent to which the courts fulfilled their mission, etc. Details of the complete amount of funding and tools provided can be found in the final report of the National Service of Gacaca Courts.
The main partners in providing support to the Gacaca Courts process were: the Netherlands, Belgium (BTC), the European Community, the United Nations Development Programme (UNDP), the Austrian Government, USAID, Switzerland, Norwegian Church Aid, ASF and JOHN HOPKINGS UNIVERSITY
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There are also those who shared their views and wrote reports on the Gacaca courts process during both the data collection phase and the trials phase. Among them we can mention NGOs such as IBUKA and its related Genocide survivors’ organisations, AVEGA, PEAPG, PRO- FEMMES, CCOAIB, LDGL, LIPRODHOR, Human Rights Watch, Penal Reform International, RCN, LA BENEVOLENCIA, AEGIS TRUST, print and other media, individuals who visited Gacaca courts especially those who attended hearings, those who carried out research and published their findings and those who monitored the process from its beginning till the end.
Since the Gacaca Courts were initiated by the Government of Rwanda, it is obvious that its institutions at all levels provided support in one way or another, each institution according to its assigned functions. There are some institutions however, which worked more closely with the courts and whose contribution was very crucial in helping them to fulfil their mission. Among them we can mention the grassroots local government organs which provided the courts with premises to work from and mobilised the people to participate in their activities; the National Human Rights Commission which coordinated all the activities of observers who visited the courts and their report and delivered it to the National Service of Gacaca Courts for corrective measures to be taken; security services that upheld law and order; the National Prisons Service; the National Unity and Reconciliation Commission; the Ministry of Justice; the Ministry of Local Government; the Ministry of Internal Security; the Office of Public Prosecutor; the Supreme Court, and others. Generally, the smooth collaboration among these government organs in supporting Gacaca Courts was among the key factors that enabled the process to attain its objectives.
The Government of Rwanda is grateful to all partners who took up various roles in supporting the Gacaca Courts Program. Their contribution was timely and of crucial importance. Their contribution is a clear indication of their readiness to support in its objective of eradicating impunity and maintaining the rule of law.
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CHAPITER III: COMMENTS ON CRITICISMS MADE ABOUT GACACA COURTS AND HIGHLIGHTS OF THEIR ACHIEVEMENTS
Having noticed that some individuals and organizations have been providing in their reports or other documents information which is the contrary of what has been done during the Gacaca Courts process, the National Service of Gacaca Courts has deemed it necessary to make some comments, in order to help those who are interested to know the true nature of the Gacaca Courts process. These comments concern criticisms of the Gacaca Courts and some cases which were (perceived in different ways). This chapter also describes examples of extreme animosity of crimes committed during Genocide and some of the fundamental human values highlighted by Gacaca Courts process.
Section one: Some of the criticisms of the Gacaca courts process and responses
This part contains explanations concerning the right to defence and legal assistance, the role of citizens in the activities of Gacaca Courts, reasons why Gacaca Courts did not try cases of crimes committed by some members of former RPA of , cases of some high ranking politicians, alleged corruption to some Gacaca court judges, motivation of judgements , Gacaca courts judges suspected of involvement in Genocide, speeding up Gacaca Courts activities and insuring fair trials, cases of rape and sexual violence, reasons why Gacaca Courts did not provide compensation to Genocide survivors, other crimes committed which were not prosecuted by Gacaca Courts, lack of legal training of Inyangamugayo judges, frequent postponement of the closure of the Gacaca courts activities, several amendments to the organic law governing Gacaca Courts, data collection process did not provide the whole truth about the Genocide and those who claim that Gacaca is justice of the victor over the vanquished (justice du vainqueur).
1. Gacaca Courts did not observe the right to defence and legal assistance
The right to defence and legal assistance is guaranteed by the Constitution of the Republic of Rwanda of 2003 as revised to date in its article 1840 paragraph 2 which states: “The right to be
40 The Constitution of the Republic of Rwanda of 04/06/2003 as amended to date, Official Gazette Special Issue of 4th June 2003
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informed of the nature and cause of charges and the right to defence are absolute at all levels and degrees of proceedings before administrative, judicial and all other decision making organs”. This right is also provided for in the International Covenant on Civil and Political Rights of 16th October 196641 to which Rwanda adhered.
This right is meant to ensure that anyone accused of any offense is given an opportunity to explain his or her defence and to be assisted by a legal counsel of his or her own choice. This ensures fairness because in most criminal cases, the prosecution is represented by a legal expert while the suspect is a regular citizen who does not know much about criminal procedure rules. It is therefore necessary to ensure that the both parties are equally prepared for the case. However, having a legal counsel is not mandatory, it is a right that one can use or not.
With regard to Gacaca Courts, the right to defence and legal assistance is respected because anyone accused of a crime is given an opportunity to provide to the Court elements supporting his or her defence 42 and is entitled to be assisted either by citizens attending the proceedings or a legal counsel of his or her choice. In fact, the organic law governing Gacaca Courts do not prohibit the accused from seeking a lawyer for his or her legal representation. As for assistance by a legal counsel, though this was rare, there some cases where suspects hired lawyers and their cases were tried in Gacaca Courts: examples are notably, the trial of Mr. BYUMA F. Xavier assisted by Advocate MUTEMBE Protais tried by Gacaca court of Appeal in Rwibuko, Mr. KARIKUMUTIMA Francois assisted by Advocate BUHURU Celestin, Father Guy THEUNIS assisted by Advocate MUTEMBE Protais, Col RUSATIRA Léonidas assisted by Advocate NDIMUBANZI Simon, BIZIMANA Japhet assisted by Advocate TWAYIGIZE J. Claude, etc. The role played by lawyers was insignificant compared to the massive participation of the people in discovering the truth about crimes committed during Genocide and in the trials of their
41 International Covenant on Civil and Political Rights New York, 16 December 1966 www.admin.ch/ch/e/rs/rs.html As seen on the 23rd August 2011 42 See Article 65 of the Organic Law n° 16/2004 of 19/06/2004 establishing the organization, jurisdiction 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 as modified and complemented to date, Official Gazette of the Republic of Rwanda special case of the 19th June 2004
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perpetrators. People who were living in areas where the crimes were committed who actually witnessed their perpetration as well as surviving victims knew more about the crimes than learned people from elsewhere. Furthermore, within Gacaca court proceedings there is no disparity among between the plaintiff and the defendant, and the witnesses because all parties were present at the time of the crimes and were tried by their peers whom they had elected.
2. People were obliged to take part in the Gacaca Courts proceedings Article 29 of Law n° 16/2004 of the 19th June 2004 provides: “Every Rwandan citizen has the duty to participate in the Gacaca courts activities. “ The obligation of attending Gacaca Court proceedings is related to the duty of testifying in the proceedings.43. Gacaca Courts system is a justice based on the people. The people know the details of crimes committed because some of them saw it happen and some others were involved in those crimes and they confessed it. Thus, the full facts surrounding these crimes cannot be ascertained unless opportunity is given to those who were present to provide evidence. True justice cannot be rendered without tangible evidence.
In many countries, many laws require their citizens to participate in the justice system. Regarding the classic laws governing the criminal procedures in Rwanda, every citizen is required to assist the justice system; and those who don’t can be punished. For example a person having knowledge of a particular crime committed that he/she did not provide information regarding the crime committed will be punished with a one month prison sentence and with a fine of RWF50,000 or either of the two44.
In the aftermath of Genocide which destroyed the Rwandan society, there was a need to provide forums for the people to have open discussions, whether of serious nature or not. In general, Gacaca Courts became a platform of expressing what happened because communication is the glue that holds a community together. As the saying goes, “a family that does not talk together is torn apart” (umuryango utazimuye urazima). Gacaca Courts established a framework where
43 Dr. Haveman H. Roelof, Merging penal systems, some extraordinary examples of the Rwandan and supranational practice., 44 See Article 57 of Law n° 13/2004 of 17/05/2004 relating to the Code of Criminal Procedure as amended and complemented up to now.
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people could can speak openly, criticize, acknowledge responsibility for the crime committed, ask for forgiveness for those crimes, and openly confess. They demonstrated that this was something that could not be done by an individual. It involves every member of the family, those who were in the country and those who were not present.
It was unimaginable that the perpetrators and victims could look each other in the eye, discuss the past and a find a way to reconcile. The Gacaca court process assisted in informing the Rwandan people what happened during the Genocide against the Tutsi and therefore eradicating generalization within the Rwandan society as some persons considered that “all Hutus committed Genocide.“
The Gacaca Courts have helped the victims of these horrific crimes to know what happened, giving them peace of mind, helped them knowing where their family member’s bodies were thrown in order to provide them with a descent burial. They were also helped to understand that genocide affected everyone which decreased the feeling of isolation45. Some survivors stated that attending the Gacaca Court proceedings was similar to a sick person going to a hospital thinking that his/her situation is unique and to find people as sick or worse off, hence, which created a beat of hope. Gacaca Court process led the Rwandan people to collectively share the load of what happened to their fellow citizen regardless of whether they were perpetrators or victims.
Within the Gacaca Courts, justice is by the people and for the people. Everything is done by the people, whether it is investigation through data collection, giving testimony, pronouncing judgement or providing assistance to parties. Within classical Courts, justice is done in the name of the people; within the Gacaca Courts, it is done by the people.
Therefore, obliging citizen’s civil obligation to take part participate in Gacaca Court proceedings cannot be confused with the use of force, Fulfilling this obligation was aimed at giving each and
45 BOSMAN Hester, Gacaca Courts in post-conflict Rwanda, The quest for reconciliation and justice, University of Amsterdam, 2007.
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every citizen an opportunity to contribute to the rebuilding of the nation and firmly salve the issue of Genocide cases that was besieging our country.
3. Gacaca Courts did not try crimes committed by former soldiers of RPF Inkotanyi
Some International Human rights organizations such as “Human Rights Watch“stated in one of its reports46 that the Gacaca Courts only tried crimes of Genocide against the Tutsi and overlooked crimes committed against Hutu. Those who want to distort the history of Rwanda go further and claim that two genocides occurred in Rwanda; that is, the Genocide against the Tutsi perpetrated under the leadership of MRND and the Genocide against the Hutu by the RPF- Inkotanyi.
Genocide is a crime prepared by the state and is executed in 8 stages as shown by researcher Gregory H. Stanton47.
His research showed that Genocide is carried out in the following stages: 1. Classification: The leadership at the time segregated the population through ethnic divisions, that is, Rwandans were not equal and did not have the same origins and some Rwandans were superior to others, etc; 2. Symbolization: The leadership distinguished ethnicities through physical appearance claiming the Tutsi had long noses etc; 3. Dehumanization: This occurred when the Tutsi were given degrading names such as snakes, cockroaches etc; 4. Organization: Militia organizations were set up with the objective of eliminating the Tutsi. There existed a number of these factions examples being; IMPUZAMUGAMBI, INTERAHAMWE, HUTU POWER. The purchase and procurement of weapons to carry out their objectives;
46 See Human Rights Watch report entitled “Justice Compromised”, the legacy of Rwanda’s community-based Gacaca Courts, May 2011, p.119. 47 GREGORY H. STANTON, Eight stages of Genocide, www.Genocidewatch.org/images/8StagesBriefingpaper.pdf As seen on the 26th August 2011.
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5. Polarization: To show that the enemy of the Hutu is the Tutsi; 6. Preparation: This occurred with the support and backing of radio stations such as RTLM, listing those to be killed, training of the militia, psychological training of the perpetrators to promote fearlessness, trial killings, informing the mass public through meetings, radio that something was going to happen and they should be prepared etc; 7. Extermination: Genocide perpetrators objective was the extermination of the Tutsi as shown in their war chants “Future generations will ask if the Tutsi still exists“! 8. Denial: Those who deny Genocide against the Tutsi deny all facts and claim that crimes committed were not acts of Genocide or justify them saying that the public was angry following the death of Habyarimana or that if Genocide against the Tutsi did occur, then, Genocide against the Hutu also occurred commonly known as “double Genocide” and other fatuous arguments
The Genocide against the Tutsi was prepared by the leadership that prevailed in Rwanda and went through all the aforementioned stages. The RPA forces brought an end to the Genocide as the rest of the world stood by and watched. If Genocide against the Hutu did occur, who was responsible for its preparation? Who brought the Genocide against the Hutu to an end? When did the 8 stages of this Genocide take place? This is all misleading. In Rwanda, Genocide occurred; against the Tutsi, prepared and executed by the leadership of the MRND at the time. However, during the war to liberate Rwanda and to stop the Genocide, some RPA soldiers did commit crimes against civilians. In this regard, as these crimes were committed by soldiers, they are classified as war crimes and not Genocide. Genocide is differentiated from war crimes and other crimes because as in the case of the Genocide against the Tutsi, people were targeted due to their ethnic affiliation. Also, a soldier who committed crimes against civilians did so without the orders of his/her superiors. Soldiers who were shown to have taken part in these crimes will be prosecuted by Military prosecutors and their trials are held in Military Courts in accordance with the law48. The problem therefore is not that these crimes were not tried in the Gacaca Courts. What is paramount is that proceedings have been set up to deal with these crimes.
48 An example is the judgements handed out by the Military Court to those who participated in the killing of priests in Kabgayi.
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5. Gacaca Courts were used to serve a political agenda
The Gacaca Courts have been used for political agenda. This is often claimed by organizations or political persons.
The international non-Government organization of Human Rights “Human Rights Watch“ has shown that the Gacaca Courts have been used politically in cases of those who oppose the current leadership in Rwanda49. An example given was in the trial of Dr. NIYITEGEKA Theoneste who was seeking to campaign for the Presidency and did not fulfil all the requirements and the case of of Mr. NTAWANGUNDI Joseph who was a member of the political party FDU-INKINGI led by Ms. INGABIRE Victoire as well as other cases that we will see later.
Law n° 16/2004 of the 19th of June 2004 governing the Gacaca Courts Articles 49 and 50 emphasize the independence of the Gacaca Courts in relation to any individual and all sections of Government. This law emphasizes all levels that work with the Gacaca Courts in order to avoid the undermining of the independence of the Gacaca Courts.
People who have written on the trial of Dr. NIYITEGEKA Theoneste try to show that the Government of Rwanda used the Gacaca Courts to convict him as a result of his campaigning for Presidency due to the fact that his public statements were critical of the Government of Rwanda. This is not true as Dr. NIYITEGEKA Theoneste was convicted for the crime of Genocide which took place while he was working at the surgery service of Kabgayi Hospital and was accused by witnesses who consisted of former colleagues and patients at the Hospital.
The leader of FDU INKINGI, Ms. INGABIRE Victoire on the 5th February 2010, regarding the trial of Mr. NTAWANGUNDI Joseph, stated that the Gacaca Courts are a political entity that weakens and silences opposition to the current leadership. She also said that the Government of Rwanda used the Gacaca Courts, with the conviction of Mr. NTAWANGUNDI, to destabilize
49 See aforementioned “Human Rights Watch” Report page 98
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the leadership of FDU INKINGI as it sought to campaign for the Presidency and that the crimes Mr. NTAWANGUNDI is accused of, occurred when he was not in the country, as between 1993 and 2002 he worked for ICFTU-AFRO (International Confederation for Free Trade Unions, African Regional Organization) in Nairobi, Kenya. The period, during which Genocide occurred in Rwanda, he was attending a meeting in Sweden.
The statement released by FDU-INKINGI was meant to intimidate the Government of Rwanda and undermine the Gacaca Courts because Mr. NTAWANGUNDI Joseph himself, during his trial at the Gacaca court of appeal at Gitwe, observed facts that affirm that he confessed to the crimes he was accused of and subsequently asked for forgiveness. This was documented in a letter written by him to the Gacaca court of appeal of Gitwe dated 4th February 2010. However, he was not able to benefit a reduced sentence because he pleaded guilty at the appeal level as stated in Article 58 of the same Organic Law as amended by Article 12 paragraph 4 of Organic Law n° 13/2008 of 19/05/2008: “However, if a person confesses for the first time before an appellate court or when the case is being reviewed, the offender shall not enjoy commutation of punishment because of a delayed confession”.
In a second statement released on 5th February 2010, Ms. INGABIRE Victoire expressed “regrettable errors in our press release“ but reiterated that Mr. NTAWANGUNDI was unjustly treated even though he confessed to his crimes and witnesses to those crimes were from his party.
After Mr. NTAWANGUNDI Joseph admitted and confessed to the crimes he was accused of before the Gacaca court of appeal at Gitwe, Ms. INGABIRE Victoire Umuhoza released another statement on the 20th April 2010 stating: “Mr. NTAWAGUNDI Joseph may be a tool for the Government of Rwanda” and denied that he was ever a part of the leadership of the FDU- INKING party!
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Regarding the trial, we can conclude that a person in political office or seeking political office is not exempted of criminal responsibility and can be prosecuted for any crimes he is suspected to have committed.
5. The fact that Inyangamugayo Judges worked on volunteer basis was a reason to take bribes Before Gacaca Courts process started the population was sensitised by leaders who explained the functioning of Gacaca Courts so that the people understand clearly that acting as Inyangamugayo judge in a Gacaca Court is unpaid voluntary work. What made them accept this work without pay is because they wanted to contribute to their country’s effort to provide justice for the crime of genocide, a daunting task that so far seemed impossible to carry out because of the amount of cases to be tried. . They were ready to make sacrifices for the love of their country and started their work fully understanding that they would not be paid.
Taking bribes is not caused by poverty or by working voluntarily; it is caused by lack of integrity. According to the figures published by the Supreme Court of people who were found guilty of taking bribes, the greatest number are people of high standing with sufficient means of livelihood and big salaries50. This happens not only in Rwanda, but all over the world; people who are found guilty of corruption tend to be the rich rather than the poor.
With regard to Inyangamugayo judges, only 12 of them were found guilty of taking bribes in 201051. This number is not alarming if you compare it with the total number of Inyangamugayo judges who were nearly 200,000. Many suspects tried to bribe Inyangamugayo with an intention to influence them in their decisions.
A few of the judges accepted but most refused and in some cases called the police52. Those who were tempted to mislead Gacaca Courts through bribery also tried to corrupt witnesses. In many cases, they were caught and punished.
50 Supreme Court, report on suspects convicted of corruption of 21/08/2009 51 Ombudsman Office, List of suspects convicted of Corruption offense (all semesters), Kigali, 2010 52 We have the example of Nyarugunga Gacaca Court of Appeal, which indicated to the Police some people who tried to bribe tem in the case of MUGIRANEZA J. Marie Vianney, and they were arrested.
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With the aim of fighting corruption to ensure that Gacaca Courts did their work free of it, the National service of Gacaca Courts, took the decision to dismiss any Inyangamugayo judge who was found to be taking bribes and informed the relevant authorities for his/her prosecution. Out of a total of 169,442 judges 443 were dismissed for corruption. This is only 0.26%. Cases tried by such judges were reviewed and corrected often using Gacaca Courts from other jurisdictions.
It can therefore be seen that extent of corruption in Gacaca Courts was not as high as some people claim. The fact that Inyangamugayo judges were working on a voluntary basis was not a sufficient reason for them to take bribes. Apart from the quality of integrity mention above, the country in general has instituted tough measures against corruption and these apply to Gacaca Courts as well. There are investigation and prosecution authorities as well as the office of the Ombudsman and other courts, all of which must ensure that there is zero tolerance for corruption.
We can say, in general, that being Inyangamugayo; working voluntarily should not be a reason to make them take bribes. As we said earlier, it is lack of integrity, not a problem of poverty. It is a matter of honesty. The culture of patriotism and sacrifice is not new in Rwanda. Inyangamugayo judges are not the only ones who made sacrifices by doing avoluntary work for the country, for example, “Abunzi” of Mediators Committees, work voluntarily to resolve conflicts between people so that they do not have to take their differences to court. Then there are unpaid primary healthcare counsellors who advise people on hygiene and the prevention of diseases and there are yet others who do very critical work for the country and receive very meagre pay compared to the work they do, and they do not take bribes.
6. Lack of Motivation of Judgements
Fair trial requires compliance with the basic principles of justice. In this regard, the National Service of Gacaca Courts constantly emphasised the importance of basic human rights which include fair trial to the Inyangamugayo judges through training sessions and various meetings. Among the main topics discussed in these training sessions on Court proceedings involved the
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motivation of judgements in law, a principle provided for by article 25 and 67 of Organic Law no 16/2004 establishing the creation of Gacaca Courts and article 144 of the constitution of the Republic of Rwanda as amended to date.
Though some Gacaca Courts did not indicate all the laws on which their judgements were based during their trials, they always referred to the law that created them and set forth their responsibilities and procedures. In the decision making, they did indicate articles of this law (motivation in law) as well as other reasons that led them to conclude in this or that direction (motivation in facts) as indicated on the form of judgement53. Section 6 of that document requires the Gacaca Courts to indicate the article on which they based their decision, convicting or extenuating grounds for the penalty, additional penalties provided for in article 76 of the Organic Law, the grounds for accepting or rejecting a confession, circumstances of confession, refusal to confess as well as other grounds to prove that the accused is guilty or innocent of the crime. The proceeding of each case recorded in the log of proceedings of every Gacaca Court indicates the evidence presented by both parties to the case in detail.
The organization known as Lawyers without borders (ASF) periodically alerted the National Service of Gacaca Courts about any Gacaca Courts that demonstrated shortcomings in this regard54 and the Service immediately organized special training sessions relating to this article. These errors mostly involved lack of motivation in law and fact of judgements. This issue was gradually resolved as the Gacaca Court hearings progressed and the Inyangamugayo judges gained experience and judgments that were affected by this shortcoming were reviewed and corrected during the appeal hearings.
However, in the ASF report of January 2010 in which the organization assessed the respect of human rights in Gacaca Courts in the Western Province where most examples of the cases were motivated in law and facts 55
53 National Service of Gacaca Courts , Program of Trials in Gacaca Courts, Kigali, 2005, p.26. 54 ASF, Observations on Gacaca Courts, Quarterly Summary Report, January 2010, p.11. 55 Same ASF report on the case of NTAWURUHUNGA Hassan and his co-accused, judgment pronounced on 10/12/2009, p. 90
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7. Some Inyangamugayo Judges suspected of involvement in genocide Before elections of Gacaca Court Inyangamugayo judges that were held from the 4th to the 07th of October 2001, the voters were notified about the criteria required of all the candidates56:
Be a Rwandan National; Be a resident of the cell in which he/she is campaigning; Be at least 21 years old; Have integrity of character and conduct; Be honest and ready to listen to others; Must never have been convicted and sentenced to six (6) months or more in prison; Must have played no role in the genocide; Must be free of conflict; Have no history of termination from work due to misconduct.
These elections were held before the data collection phase which revealed those suspected of participation in genocide crimes, the information regarding suspects of genocide was still being collected. However, there were cases where people selected fellow genocide suspects in order for them to manipulate and mislead the court to their advantage. This led the National Service of Gacaca Courts to take the decision to replace all Inyangamugayo judges suspected of participation in genocide. In 2006, 45,396 Inyangamugayo judges were replaced due to suspicion of participation in genocide crimes57.
8. Speeding up Gacaca Courts activities may have led to hasty judgements
As it is, quick completion of genocide case trials was one of the objectives of Gacaca Courts and this was also the preference of the parties to the cases. International Human Rights Organizations including Human Rights Watch and others always advocated for genocide cases to be tried faster
56 See Article 7 of Presidential Order n˚ 12/01 of 26 June 2001 establishing modalities. for organizing elections of members of Gacaca Courts. 57 National Service of Gacaca Courts, Quarterly Report, Kigali, 2006, p. 3.
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especially pointing out that many people had spent so long in temporary incarceration awaiting trial yet some of them are innocent.
In 2005, the Gacaca Courts began the hearings which were going well but had not yet picked up the desired momentum because they were still new. In 2007, after Inyangamugayo judges had gained experience in conducting hearings, the proceedings gained remarkable momentum and closed up to 1,059,298 case files in the second and third category58. In addition to the experience gained by the Inyangamugayo judges and their increased understanding of the laws governing Gacaca Court proceedings, another factor that facilitated Gacaca Courts in speeding up was the commitment of Inyangamugayo judges.
The original schedule for Gacaca Court hearings was one day per week; after the Inyangamugayo considered the magnitude of case files that had to be tried, they decided to hold hearings more than one day per week. Some even held hearings three or four days a week some even worked for six days a week to prevent repeated postponement of hearings.
There were also legal provisions made to increase the speed of hearings. For example the amendment of 01/03/2007 of Organic Law no 16/2004 of 19/06/2004 which allowed a Gacaca to have more than one bench where necessary59. Following this amendment, the number of courts was increased basing on the number of case files a court had. A court that had over 150 case files would have a supplementary court to share the case load60.
However, even though the speeding up of trials was the objective of all parties at the beginning, it became a subject of controversy when the trials were completed. Some of the organizations mentioned above including the Human Rights Watch described it as a shortfall61. They pointed out that speeding up the trials caused the Inyangamugayo judges to brush over the hearings without enough time to examine all evidences in the files of the suspects yet in the actual sense
58 National Service of Gacaca Courts, Annual Report 2007, p. 98. 59 See Article 8 of Organic Law no 16/2004 of 19/06/2004 as amended and supplemented up to now. 60 See Article 1 of Instructions no 11/07 of 02/03/2007 of the Executive Secretary of the National Service of Gacaca Courts relating to setting up multiple benches in a Gacaca court and modalities for their working together 61 See HRW report mentioned above, p. 26.
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the Inyangamugayo judges added consecutive days of the weeks to complete hearings in order to thoroughly examine the evidence presented within the allowed period.
These statements are contradictory because it even seems like the closure of Gacaca Courts may have been a loss to some of these individuals because they were earning a living by criticising the Courts. In conclusion this point, it should be noted that the speeding up of trials was done in the interest of preserving human right to receive a trial within an adequate period of time and this was the preference of the Rwandan people in general and more especially the preference of parties to the cases which was the actual reason for seeking new measures to speed up the trials. In addition, these measures taken to speed up the trials in Gacaca Courts did not obstruct in any case the regular instances of trials: the first hearing, the appeal hearing and revision of the judgments.
9. Hearings of cases of rape and sexual torture took pace in public
Organic Law no 13/2008 of 19/05/2008 granted Gacaca Courts the jurisdiction to try some of the cases of the first category including rape and sexual torture when the courts were completing the trials of second and third category. For this reason, the National Service of Gacaca Courts decided to strengthenthe ability of the courts to try cases in the first category and cases transferred from ordinary andmilitary courts because of their particular nature. The legislator had established special measures for trying this kind of cases eespecially those involving rape and sexual torture. This is a crime a shameful nature that has deep traumatizing effects on the victim which led the legislators to create special provisions for prosecuting crimes of this nature.
Article 6 of the law mentioned above states that in accusations relating to crimes of rape and sexual torture, the accused shall present the accusation to Gacaca Court of the Sector where the crime took place, either to the investigating authority or the prosecuting authority. This helps the victims of such crimes who do not wish to testify in public not obstructed by the open nature of Gacaca Court process which is made publicly through the data collection process conducted in the general assembly of the Cell. When the victim of the crime is no longer alive or is unable to make the accusation, any other concerned party can report the crime in private. It is prohibited to
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confess to this crime or report this crime in public. The investigation and prosecution of such crimes is done secretly.
In order to protect the privacy of victims of such damaging crimes, the law prohibits members of the court from disclosing any information they acquire during these private hearings. Article 5 provides that any member of the Gacaca court who discloses secrets from the private hearing shall be removed from the court and prosecuted for this offence and may be sentenced between one and three years of prison.
In order to ensure the smooth running of trial of such cases, the National Service of Gacaca Courts organised general training sessions on this new Organic Law. These training sessions were followed by other special training sessions organized by the National Service of Gacaca Courts in collaboration with the Institute of Law Practice (ILPD) that was attended by Inyangamugayo judges elected by their peers to try cases of the first category including crimes of rape and sexual torture. These Inyangamugayo judges were elected by their peers mainly basing on their competences and their known discretion. The training sessions was focused on prosecution of cases of rape and sexual torture (provisions of the law, the procedure or the prosecution and offering special consideration and care to the victims of such crimes) and handling episodes of traumatic reactions. The training sessions were held from July to September 2008.
In this regard, the National Service of Gacaca Courts issued instruction no 16/2008 of 0506/200862 relating to cases of the first category particularly those involving rape and sexual torture. In order to ensure discretion in cases that are prosecuted in camera, article 12 of the instruction reserves the authority to review the grounds for appeal in cases of rape and sexual torture to members of the Gacaca Court of that Sector or members of the Gacaca Court of Appeal and not members of the general assembly of whole Sector.
62 National Service of Gacaca Courts, Instructions nº16/2008 of 05/06/2008 of the Executive Secretary of the National Service of Gacaca Courts relating to organizing the prosecution of Genocide crimes and other crimes against humanity in the first category, Genocide cases from ordinary and military courts and review of cases judged by Gacaca Courts, Kigali, 2008.
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All the measures mentioned above were aimed at ensuring a discreet and humane way of handling these cases. The National Service of Gacaca Courts has never heard of a case involving rape and sexual torture that was tried in public by a Gacaca Court. However, not all the victims of this kind of crime were able to report them to the Gacaca Courts because it requires the victim to psychologically accept the unpleasant violence endured. But this shall not obstruct justice for these cases because the prosecution of genocide crimes and crimes against humanity has no expiration date63.
10. Gacaca courts did not compensate genocide survivors
In cases judged by Gacaca Courts, no compensation was provided for genocide survivors because Article 96 of Organic Law no 16/2004 mentioned above provides that “Other forms of compensation the victims receive shall be determined by a particular law.“. Further discussions on this issue are continuing and Articles 4 and 6 of Law no 09/2007 of 16/02/2007 on the attributions, organization and the structure of the National Commission for the fight against genocide64, which provides that the Commission has the duty to seek for assistance for genocide survivors and pursue advocacy as to the issue of compensation.
11. Other acts that were not punished by Gacaca Courts
Although Gacaca Courts were able to try more than a million suspects of the Genocide against the Tutsi and related crimes against humanity, we cannot claim that they were able to prosecute and punish all violations of human rights from 1st October 1990 to 31 December 1994. There are other punishable acts and omissions that were not prosecuted, depending on the circumstances under which they were committed, the intention of those who committed them, the conditions in the country at the time they were committed, but more especially in the interest of reconciliation among Rwandans. Among such acts and omissions were:
63 See Article 97 of Organic Law no 16/2004 of 19/06/2004 mentioned above. 64 Law no 09/2007 of 16/02/2007 on the attributions, organisation and functioning of the national commission for the fight against genocide,Official Gazette,Special Issue of 19 March 2007.
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Failure to assist those in danger; Presence at roadblocks where no genocide crimes were committed; Attendance of meetings advocating the extermination of the Tutsi; Reception of weapons to be used in the killing; Criminal acts committed under irresistible compulsion; Participation in night patrols during the Genocide
A. Failure to assist those in danger
Failure to assist those in danger is punishable under the penal code of Rwanda65. Article 256 provides: Imprisonment from two months to five years and a fine of not more than ten thousand francs or one of the two punishments: 1o Anyone who shall be in a position to prevent an act of cruelty that could cause grievous bodily harm to another person, without bad consequences to himself or to others, but ignore to do so 2o Anyone who shall be in a position to come to the rescue or call others to the rescue of a person in mortal danger, without serious risk for himself or others,
but ignore to do so During the Genocide, some people were afraid to rescue those who were being hunted because the government of that time had directed that anyone who would attempt to save a Tutsi or any other hunted person must also be killed. This directive was often expressed in the saying: “If a snake winds itself around your precious milk container, you have to break it to kill the snake.“66. It would be unjust to punish an ordinary citizen for not daring to step forward, under risk of death, and attempt to stop acts that were
65 Decree Law n°21/77 establishing the Penal Code of 18 August 1977, Official Gazette, 1978, n° 13 bis, p. 1). As amended by Decree Law n°23/81 of 13 October 1981 (Official Gazette, 1981, p. 940), confirmed by Law n°01/82 of 26 January 1982 (Official Gazette, 1982, p. 227) and Law n° 08/1983 of 10 March 1983 (Official Gazette, 1983, p. 206).
66 Such words were used especially by bad leaders during the Genocide urging Hutu to kill and not to rescue any Tutsi. They were used, for example, by SIBOMANA Antoine who was the Burgomaster of Commune Mbazi, in a speech to a public meeting at Byiza Stadium (Mutunda) in Mbazi Sector, Huye District on 21/04/1994 see African Rights, “La vérité enterée au nom des droits de l’homme”, Page 10.
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planned and put into action by the government. This is the reason why failure to come to the rescue of those who were being hunted during the Genocide was not considered a crime to be prosecuted and punished by Gacaca Courts.
B. Presence at roadblocks where no crimes were committed
During the Genocide, the government had ordered that roadblocks be set up throughout the country to check the movements of the enemy. The killer leadership of the time had taught throughout the country that Tutsis were the enemy. It was the leaders who decided where the roadblocks should be set up and how the people should take turns to run them, urging them to be vigilant. These roadblockswere used to stop and kill Tutsi fugitives.
Information gathered during the Gacaca Courts process indicated that there were barriers where genocide and related crimes were perpetrated and others where no such crimes were committed. A person who had obeyed the order to be at a roadblock could not be convicted merely for presence at a roadblock where no crimes were committed.
C. Participation in night patrols during the Genocide
Night patrols are normally carried out by residents of a neighbourhood for their own security. . During Genocide, there were night patrols and every man who was not being hunted had his turn to be on one of these patrols. Those who met fugitives or discovered their hiding place and killed them or committed other crimes against them were liable for prosecution and punishment. Generally, being on night patrol is not in itself a crime punishable by law. However, if a person on patrol committed crimes against those who were being hunted, he is liable for prosecution and punishment.
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D. Attendance of meetings advocating the extermination of the Tutsi
During the Genocide, the leaders convened many public meetings to encourage Hutu to kill Tutsi and destroy or seize possession of their property. Some people attended the meeting, but went home and did not follow the instructions they had been given. Their conscience did not allow them to do evil to their neighbours. In testimonies given during trials with regard to attendance of those meetings, some defendants and witnesses pointed out that it was mandatory for each person not among those who were not being hunted to attend them; not to attend them was regarded as civil disobedience at the best, or treason at the worst. Some of those who refused to obey the instructions given at the meetings were killed in return. This is the reason why attendance of those meetings was not an offence punishable by Gacaca Courts.
E. Reception of killing weapons
During Genocide, it became clear that the government of the time had distributed weapons such as guns, grenades, axes, machetes, clubs with nails, uniforms for the Interahamwe militia, whistles and so on.
With regard to those who received unlicensed guns and other military equipment during the Genocide, it is normally an offence to keep a gun without a licence. Article 70 of Law no 33/2009 of 18/11/2009 relating to firearms 67 provides that, subject to the provisions of the penal code, anyone owning or carrying an unauthorised weapon “shall be liable to a term of imprisonment of seven (7) days to one (1) year and a fine of fifty thousand Rwanda francs (Rwf 50,000) to two hundred and fifty thousand Rwanda francs (Rwf 250,000) or either of these penalties.”
67 Law no 33/2009 of 18/11/2009 relating to firearms, Official Gazette of theRepublic of Rwanda no 52 bis of 28/12/2009 replacing Decree Law no12/79 of 07/05/1979 relating to guns and their bullets as completed by Law no 01/82 of 26/01/1982.
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If you consider the security conditions that time, you find that the government had distributed unlicensed guns and other military equipment to such an extent it seemed every recipient was permitted and encouraged to own, carry and use them.
Guns and grenades were widely distributed between 1990 and 1994 on the pretext of “self defence”. In his book, the writer L. Melven pointed out how extraordinary it was for a country like Rwanda, which was among the poorest countries in the world, to be among the first three African countries to have bought the greatest amount of arms. From October 1990, Rwanda bought arms worth US $ 112 million68. The guns, grenades and other instruments of murder distributed by the government of the time helped the killers to perpetrate the Genocide with extraordinary rapidity.
Generally, even if many weapons ofire and traditional arms, were distributed, only those who used them to commit crimes were liable for prosecution and punishment. Those who received them and did not use them cannot be prosecuted for the Genocide and related crimes.
F. Criminal acts committed under irresistible compulsion
Article 70 of the Rwanda Penal Code provides that “no one shall be punished for a crime committed under irresistible compulsion“. After the collection of information on crimes committed during the Genocide, there followed the opening of case files for those suspected of having taken part in the Genocide and the Gacaca Courts started to put them on trial. In the course of the trials, it became apparent that there were people who committed offences under duress. The Gacaca Court handling such a case would investigate to ascertain whether the accused committed the crime under irresistible compulsion. Not all compulsion is irresistible. Any accused person claiming that what he or she did was under irresistible compulsion would have to name the person or people who imposed compulsion on him or her and how it was used. The Court would then decide whether or not the compulsion was irresistible. Some of the accused gave credible evidence that they were forced at gun point to kill or commit other crimes;
68 L. MELVEN, Conspiracy to murder- the Rwandan genocide, London, Verso Publishers, 2004, p.56.
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others showed injuries sustained in the course of forcing them to participate in the Genocide and related crimes. In short, a person was not liable to punishment for crimes committed under duress, where it was evident that it was impossible to resist the compulsion without risk of death.
12 Inyangamugayo Judges with no legal background
Some of the human rights organizations mentioned above expressed doubt regarding whether the Inyangamugayo judges of Gacaca Courts who have no legal training and experience would be able to try Genocide cases69.
As it is, Gacaca has always been part of Rwandan culture. When one committed a crime they were brought before Gacaca and chastised by the elders and the two families (the family of the offender and the family of the offended) were reconciled and the conflict was resolved. The main aim was to resolve the dispute between two families. Even though there were no written laws at the time, conflicts were settled basing on cultural values. With regard to Gacaca Courts, the historic goal of reconciliation was maintained however, the Courts applied the codified laws and regulations. The Organic Law governing Gacaca Courts comprises principles of human rights as well as principles of fair trial.
When one examines the nature of crime of Genocide, it is clear that the main obstacle would be the process of identifying those who committed the crimes. Inyangamugayo judges were significantly facilitated in this regard due to the testimonies provided by those who committed the crimes and came forward to confess and request forgiveness, by Genocide survivors and by others who witnessed the crimes. After the incriminating or exonerating, evidence was presented. The only next step involved was to consult the provisions relating to the crime in Organic Law no 16/2004 governing Gacaca Courts. Therefore this does not require graduate education in law. The hearings mainly based on the testimonies of witnesses about their experiences (what they did
69 ASF, Analytical Report on Gacaca Courts, no 5, January 2008-March 2010, p.19.
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or what was done to them, what they saw or what they heard) during Genocide to guide the judgments of the Courts as corroborated by the observers70.
It should also be noted that the Inyangamugayo judges were given training on the laws and regulations governing hearings of Gacaca Courts and most of them even memorized them because the Organic Law mentioned above had become like the Nyangamugayo bible. In addition, it should be noted that the National Service of Gacaca Courts had many qualified lawyers among its staff that were charged with the coordination of Gacaca Courts’ activities and offered advice to the Inyangamugayo judges in matters relating to the law whenever necessary.
Without comparing the functioning of Gacaca Courts to other criminal prosecution systems, it is important to note that the work accomplished by the Inyangamugayo judges of Gacaca Courts was indeed of the utmost quality.
13. The closure of Gacaca Courts was postponed many times
At the beginning, Organic Law no 16/2004 of 19/06/2004 only granted Gacaca Courts the jurisdiction of cases of the second and third category. However, when the Gacaca Courts were almost completing this case load, there was an amendment of 01/03/2007 which resulted in the postponement of the closure of Gacaca Courts. The amendment re-classified some of the crimes that were initially considered among first category crimes and placed them in the second category (in the jurisdiction of Gacaca Courts). Those crimes are the following: 1° Notorious murders who distinguished themselves in their location or wherever they passed due to the zeal and cruelty employed, together with their accomplices; ; 2° Those who tortured others even though such torture did not result into death, together with their accomplices; 3° Those who committed dehumanising act on dead body, together with their accomplices.
70 See PRI Report mentioned above, p. 18.
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In 2008, after the Gacaca Courts had completed the trials of the case files mentioned above, another amendment of 19/05/2008 was made71 which granted Gacaca Courts the jurisdiction to try some of the cases in the first category as well as ongoing Genocide cases from Ordinary and Military Courts that had not yet been concluded and again the closure of Gacaca was postponed. The first category case files transferred to Gacaca Courts are as follows: - Those who committed or were accomplices in the commission of offences that put them among the category of people who incited , supervised and ringleaders of the Genocide or other crimes against humanity; - Those who were at the leadership level at the Sub-Prefecture and Commune: public administration, political parties, army, gendarmerie, communal police, religious denominations or in militia, who committed any crimes of genocide or other crimes against humanity or encouraged others to commit similar offences, together with their accomplices; - Those who committed committed the offence of rape or sexual torture and their accomplices.
People generally agree that the efficiency of Gacaca Courts facilitated the quick completion of these hearings. This is further emphasised by the fact that the decision was made to transfer these cases due to the efficiency of Gacaca Courts in providing fair trials for Genocide cases.
The cases from ordinary and military Courts transferred to Gacaca Courts were as follows:
1. Ongoing cases in Courts of higher instance and Military Courts that have not yet been concluded; 2. Ongoing appeal hearings at the High Court or the Military High Court where no decision has been taken on a last appellate level; 3. Cases that were tried by Courts of higher instance and military Courts and time within which to lodge appeal has not yet expired; 4. Cases before the Supreme Court and no final decision has been taken; 5. Cases heard by the High Court and the Military High Court, and period within which to lodge appeal has not yet expired.
71 See Article 9 y‘Organic Law no 13/2008 of 19/05/2008, Official Gazette of the Republic of Rwanda no 11 of 01/06/2008.
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There were 9,352 first category cases plus 1,265 cases from the Ordinary and Military Courts transferred to Gacaca Courts for trial which again resulted in the postponement of the closure of Gacaca Courts due to the following reasons: - The number of case files of the first category and those from the ordinary and military courts; - The special consideration given to rape and sexual abuse cases; - When the people learned about the imminent closure of Gacaca Courts they increased their appeals significantly regarding unresolved issues they still had relating to Gacaca Court hearings and it took time to examine and resolve these issues; - The difficulty of predicting the duration of a hearing; - Cases that led to additional data collection. This resulted in the compilation of 3,953 additional case files which also had hearings and appeals.
After completion of the hearings there was a report on the findings and accomplishments of Gacaca Courts which also took time due to the sheer size of the report. This report indicates the detailed personal information of all individuals tried by all Gacaca Courts (names of the accused, names of their parents, dates of birth, places of residence, date of the hearing and the sentences).
All the reasons mentioned above most especially the measures taken to ensure preserve the principles of fair trial resulted in the repeated postponement of the closure of Gacaca Courts. However, it is also true that before the date of 04/05/2012 was set by the Cabinet meeting of 21/12/2011, a date that was however extended to 18th June 2012 for the closure in order to meet the 10th anniversary reflecting the launching of Gacaca Courts activities in pilot phase, there was no actual deadline set for the closure of Gacaca Courts. The scheduled deadline that was referred to, was actually based on the objectives set by the National Service of Gacaca Courts however the most important objective was to properly complete the mission.
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14. The Organic Law governing Gacaca Courts was amended many times
Amendments to laws are common. An amendment may involve a modification, completion or further description of an existing law to facilitate those affected by the law to better understand and implement the law. Organic Law no 16/2004 of 19/06/2004 establishing the organization, jurisdiction and functioning of Gacaca Courts replaced the Organic Law n° 40/2000 of 26/01/2001 governing the creation of Gacaca Courts and organizing the prosecution of Genocide crimes and other crimes against humanity committed in Rwanda Between 1st October 1990 and 31st December 1994.
The abrogation of this Organic Law was mainly due to the lessons learned from the pilot period. It was necessary to modify the nature and functioning of Gacaca Courts in areas such as information gathering, jurisdiction of Gacaca Courts, monitoring and coordination of Gacaca Courts, categories of suspects and sentences, in general it was necessary to transform the Gacaca Court system permanently and at all its levels which required abrogation of Organic Law n° 40/2000 in order to improve the functioning of Gacaca Courts.
Regarding Organic Law no 16/2004 of 19/06/2004, the law was also amended whenever necessary with the aim to improve the functioning of the Gacaca Court system or to resolve obstacles encountered during the day to day functioning of Gacaca Courts. Considering that the Gacaca Court system was a pioneer of its kind with no similar system to emulate, there was a continuous need to seek and conceive solutions to obstacles that would be encountered during the proceedings of Gacaca Courts. Below are some of the obstacles that had to be resolved through amendment of the Organic Law governing Gacaca Courts: - Determining the territorial jurisdiction for each Gacaca Court after the amendment of the law governing the administrative entities of the Republic of Rwanda; - Including provisions in the law to allow faster hearings since the cases were exceedingly numerous; - Solving the problem of having too many prisons in the country; - Removing the death sentence in the law governing Gacaca Courts; - Reducing sentences for those convicted of Genocide crimes;
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- Creating methods to speed up the hearings more especially those of the first category; - Facilitating the transfer of cases that were still ongoing in Ordinary and Military Courts and had not yet been concluded with definitive verdicts to Gacaca Courts; - Determining a guideline for conducting rape and sexual abuse cases in Gacaca Courts in a way that avoids traumatising the victims and promoting confidentiality; - Determining how trial and punishment for Genocide crimes shall be implemented after the closure of Gacaca Courts.
As mentioned above, each amendment was immediately followed by training of all the Inyangamugayo judges of Gacaca Courts familiarizing them with the key elements of the amendment. This organic law no 16/2004 of 19/06/2004 was amended three times: in 2006, 2007 and in 2008. The detailed reasons for each amendment have been mentioned above.
15. Data Collection did not reveal complete information on the Genocide
Some committees of the Genocide survivors have complained that data collection did not expose all the crimes committed during the Genocide and even requested that Gacaca Courts should not close their activities before this issue is resolved72. It is in this regard that in some locations data collection was redone to complete the data collection. As we mentioned earlier, there are 11 places where very many people were massacred during the Genocide and the redoing of data collection yielded 3,953 additional case files.
Nevertheless, though the data collection were to be repeated throughout the country, it would be impossible to confirm that all the crimes committed during the Genocide have been exposed and all the perpetrators have been brought to justice. It should be remembered that investigation and the prosecution of crime of Genocide and other crimes against humanity committed between the 1st October 1990 and the 31st December 1994 will continue even after the closure of Gacaca Courts. For this reason, Article 25 of Organic Law no 13/2008 of 19/05/2008 provides that:
72 Letter by Genocide survivors of Kagano Sector, Nyamasheke District to the National Service of Gacaca Courts on 27/07/2009.
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“Crimes of Genocide and other crimes against humanity identified after winding up and closure of Gacaca Courts shall be prosecuted and tried by Ordinary and Military Courts...” The same Article provides that such prosecution has no time limit: “Prosecution and punishment for the crimes related to Genocide or crimes against humanity shall not be time-barred”.
16. The Gacaca Courts process is justice of the victor
The international organisation PRI (Penal Reform International) frequently referred to Gacaca Courts system as justice of the victor in a war73.
One of the reasons for this point of view was that some parties for their own interest were spreading the rumour that Gacaca Courts prosecute only crimes committed against the Tutsi and ignored those committed against the Hutu74.
The war which started in October 1990 and ended in 1994 was aimed at liberating all Rwandans from dictatorship characterised by bad leadership based on ethnic discrimination and nepotism to the extent of planning and perpetrating the Genocide aimed at exterminating a part of the country’s population.
Liberation, therefore, was the wish of all Rwandans, except a few who were in a clique nicknamed “Akazu“75 who were oppressing the Rwandan people. The victory, therefore, was for all Rwandans because they were thirsty for democracy, human rights, the right to secondary and higher education without ethnic and regional discrimination using the pretext of “balancing76“, equal rights to work in positions of leadership without anyone being considered
73 See www.penalreform.org, Analysis of PRI on Gacaca Courts, p. 4, seen on 15/03/2012. 74 Ibidem. 75 The «Akazu» was a clique of a few people who were very powerful in the Habyarimana regime, mostly from the former prefectures of Gisenyi and Ruhengeri. 76 There was a definite very ristricted number of Tutsi that could be admitted to secondary and higher education ….see Butera Dismas et al.
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“ingwizamurongo“77, (appointed merely to complete the list of required leaders). Women were particularly oppressed and needed to be given equal opportunity to access decision-making positions, those imprisoned without trial and survivors of Genocide and other crimes against humanity needed justice. All Rwandans needed to feel proud of being full citizens of their country instead of being given or denied opportunity on the basis of the ethnic and regional background, discrimination stamped into what was supposed to be a national identity card. They all needed development and other benefits they had been denied, which they are getting now.
Everyone knows there was Genocide against the Tutsi in Rwanda, apart from those who deliberately deny it. Prosecution of its perpetrators is also an obligation recognised worldwide through the United Nations which, in the immediate aftermath of the Genocide in 1994, decided to establish the International Criminal Tribunal for Rwanda in Arusha, Tanzania.78 At that time, in Rwanda, we were still at the stage of getting prepared.79. Anyone, therefore, trying to advocate that those who took part in the Genocide should not be prosecuted would be pretending not to recognise those crimes and that the perpetrators of the Genocide did no evil. Such a person or organisation needs to learn more about Rwanda to get rid of outmoded misconceptions that see the country not as a nation that has existed for centuries, but as a battlefield for ethnic conflicts.
Gacaca Courts, therefore, were not set up to try only cases of crimes against the Tutsi, as PRI would like others to believe, because they vindicated any victims of those crimes : this means all who lost family members, relatives and friends in the Genocide, who were hunted to be killed and survived, who suffered rape and/or sexual torture, were wounded or suffered any other form of violence, whose homestead was destroyed or suffered loss or destruction of property, all because the victim belonged to the wrong ethnic group or opposed the Genocide ideology80. There was no discrimination in the prosecution of such crimes. We all know that Genocide was
77 «Ingwizamurongo» were a handful of powerless Tutsi in government, symblolically appointed to leadership positions 78 United Nations Security Council, Resolution n◦ 955 of 8 November 1994 establishing the International Criminal Tribunal for Rwanda, http://www.un.org/french/documents/view_doc.asp?symbol=S/RES/955(1994), byarebwe on 09/08/2011. 79 Organic Law n°08/96 30/08/1996 organizing the prosecution of Genocide crimes and other crimes against humanity committed since the 1st October 1990. 80 See Article 34 of Organic Law n° 16/2004 of 19/06/2004 governing Gacaca Courts mentioned above.
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targeting Tutsi, that they were hunted and killed because of their ethnic group, though there were Hutu individuals who were killed because they refused to participate in the Genocide or attempted to save lives of those who were being hunted or were prominent opponents of the Genocide ideology.81. Gacaca Courts put to trial anyone who was suspected of having committed any of the crimes mentioned above, irrespective of whether s/he was Hutu or Tutsi. Likewise, accused were convicted or acquitted according to the evidence in their case, not because of their ethnic affiliation. All this shows that whoever was suspected of having taken part in the perpetration of Genocide and related crimes was brought before Gacaca Courts for trial and judgement, regardless of his/her ethnic orientation.
Gacaca Courts were not established to prosecute those who lost the war, but those who were accused of having committed the crimes mentioned above. If anyone from the defeated army was tried by Gacaca Courts, it was not because of losing the war, but because he or she was accused of having taken part in the Genocide.
No doubt, there are people who still think that Gacaca Courts did not try cases involving crimes committed by the former RPA soldiers in order to hide those crimes. This is not true. Gacaca Courts did not try those crimes only because they were tried in Military Courts, as we have explained above. The crimes were committed by individuals and are different from those committed in the Genocide because these were planned by the then Government and implemented under its direction.
In concluding this part, we can stress that Gacaca Courts were not set up to sit in judgement over one section of the Rwandan population in favour of another. They were set up to put to trial, without any distinction, anyone accused of having taken part in the Genocide. That was their mission and they carried it out transparently, according to the law.
81 An example is Agatha UWIRINGIYIMANA who was Prime Minister; many political leaders and other people killed for their opposition to the Genocide ideology were buried on Rebero Hill, Kicukiro District.
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Section 2: Examples of inhuman cruelty during the Genocide
In order to especially show those who deny and belittle the Genocide against the Tutsi, we have tried to narrate some of the atrocities committed during Genocide and how they were committed. These are some of the inhuman acts that were committed with unthinkable cruelty. Those acts were brought to light during the data collection phase and during the proceedings. This is also an indication of the amount of work the Inyangamugayo judges of Gacaca Courts did. Here are some of the examples:
A. Cannibalism Below are some examples of cases of this kind of crime: In Nyarugenge District, Kimisagara Sector, Kimisagara Cell, MUGABOWINDEKWE Vianney and Joseph captured and slaughtered one named TWIZEYIMANA Jean Marie Vianney, skinned him alive, sliced pieces of his flesh, roasted them on skewers and ate them; In Nyarugenge District, Kanyinya Sector, Mubuga Cell, one RUZIBIZA Ignace and MUSAFIRI tried to rape a young woman named KAYITESI and she resisted; they slaughtered her and removed her skin, divided up her body parts and gave her heart to children to play with on the roadside telling them to see what the heart of a Tutsi woman looks like. In Rusizi District, Mururu Sector, Mutara Cell at a place called Gatandara there was a roadblock heavily manned by Interahamwe who slaughtered people, removed their hearts, roasted and ate them. Testimonies at trials in the Sector Gacaca Court and the Gacaca Court of Appeal at Kamembe revealed that men at that roadblock ate their victims. This was confirmed by Ms MUKANKUNDIYE Stephanie at her trial for her role at that roadblock. The fact that she confessed and pleaded for forgiveness; her sentence was commuted to community service. In an interview with Ms MUKANKUNDIYE on 08/03/2012, she told us that she saw with her own eyes one NYARUPFUMU and another man called ROGER, roasting on skewers and eating the heart of KARANGWA Emile who was a trader in Kamembe; afterwards they went to a pub he owned bragging “we have killed him, we have even eaten him, if he ever rises
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from the dead he will be without a heart“. Testimonies of that crime indicated that the hearts of those who were killed at the Gatandara roadblock would be removed and roasted at the pub of MVUNINGOMA Daniel (who is serving his sentence for that crime in Cyangugu Prison) and eaten with roasted green bananas. Here are the names of some of the people slaughtered at that roadblock, whose hearts were eaten: HABIMANA Jean Marie Vianney Alias Gapfumu, SIBOMANA Benoît, NAHAYO Théodore, NZISABIRA Trojan, NKATA Bernard, NSENGIYUMVA Albert and GATASHYA Ananiya. Among the killers at that roadblock were KABAMBA Nyarupfumu, Roger, RENZAHO Patrice, MVUNINGOMA Daniel and others from Mururu Sector. In Karongi District, Gihango Sector, Murambi Cell, one SERUSENYI Ramadhan with other killers slaughtered a Tutsi woman called NYIRABAJA Vénantie, shared her body parts and ate her. He was condemned to life imprisonment with special provisions and is now serving his sentence in Nyakiriba Prison in Rubavu District.
B. Acts of horror
Here are some examples: In Ruhango District, Kinihira Sector, Nyakogo Village one Kamonyo and his accomplices captured KANKWANZI Anastasie, AYINKAMIYE Marthe, MUKANTABANA Aloysie and NYUMBAYIRE Béatrice, and threw them alive into a pit latrine. The next day their neighbours boiled water in a drum and poured it on them in the pit latrine. In Nyamagabe District, Cyanika Sector, one NZEYIMANA Laurent, KANYENZI Frédéric and MUSONERA J. Baptiste tied up an old woman by the name of NYABUHORO inside her hut and set it ablaze. In Nyarugenge District, Nyamirambo Sector, Kivugiza Cell one NSENGIYUMVA Léopold gave instructions to lock an old woman and a ferocious dog that was not hers inside her house; the dog savaged her to death. In Nyarugenge District, Kanyinya Sector, Nzove Cell, one RUSINE Innocent split his Tutsi wife in two with an axe; he also killed his own child and his mother in law.
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In Kicukiro District, Kigarama Sector, Rebero Cell, one NGEZAHAYO Dominique caught a baby by the legs and kept hitting him against a tree till he died! In Ngororero District, Nyange Sector, Father SEROMBA Athanase directed those who had come to kill Tutsi people who had taken refuge in his church to pull it down over them. A tractor was used to demolish the church and the refugees were buried alive in its ruins. In Ngororero District, Ngororero Sector about fifteen thousand Tutsi had taken refuge at the regional headquarters of the MRND; The building was surrounded and the victims herded and locked inside, then petrol was used to set it ablaze. Only seven persons are said to have survived that inferno. In Kicukiro District, Kigarama Sector, Rwampara Cell, one MURIRIKIZA Léonard beheaded a person, put it on a stake and went about showing it off. In Nyanza District, Cyabakamyi Sector, the Burgomaster at that time by the name of RUTIGANDA beheaded a person using a bayonet and displayed the head to the people as an example of what they should do. In Kirehe District, at Nyarubuye Catholic Parish, after the killers had massacred a multitude of Tutsi people who had taken refuge in the church, they dusted hot ground pepper on the victims so that whoever was left alive would sneeze and be finished off. In Gisagara District at Muyenzi Village a woman heavy with child was split open and the mature foetus staked on tip of a spear.
C. Competition and Notoriety in killing
Here are some examples of where this took place: In Karongi District, Gashali Sector, Musasa Cell, one RUGARAVU Pontien confessed that he killed 99 people and, on failing to get the 100th victim, killed his own goat. Because he confessed freely and pleaded guilty, his sentence was commuted to community service. In Karongi District, Murundi Sector, Nyamushishi Cell, one HABIYAREMYE Bernard killed more than 300 people. Every Tutsi person captured would be brought to him for
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killing. He had been nicknamed “Killing Machine” for his efficiency in killing people. He is serving a life sentence in Mpanga Prison. In Ngoma District, one HABIMANA Emmanuel Alias CYASA travelled all over what was Kibungo Prefecture and some communes in the former Kigali Rural Prefecture, killing and inciting Hutu to kill Tutsi, setting fire to their homes and distributing weapons for killing them. He is serving a life sentence in Kibungo Prison. In Rutsiro District, Murunda Sector, Musongati Cell one HATEGEKIMANA Sabin, said during his trial that he did not know the number of people he killed because he killed many people in many different places. Here are some of the places where he killed people: he started at Murunda Parish and killed Tutsi Priests who lived there, then went to Rutsiro Commune with a big gang of Interahamwe and took part in the extermination of about 2000 Tutsi people who had taken refuge there. He went on with the same gang to Nyamagumba in Gihango Sector and he participated in the killing of about five thousand Tutsi who had taken refuge there, using guns and grenades. Eventually, they went to Mushubati at a vocational training centre and killed more people, then on to Rubengera killing people all the time, and on to Gatwaro football stadium where many Tutsi had taken refuge and massacred them, and then on to Bisesero where their deeds are beyond description. Mr Hategekimana is now in MPANGA Prison, condemned by several different Courts to life imprisonment with special provisions.
D. Dishumanizing acts on dead bodies
Here are some examples of where this took place: In Nyamagabe District, Sector Cyanika one MUKANZIZA Agnès took the bodies of two people who had been killed near her home and fed them to her pigs. In Huye District, Gishamvu Sector the remains of MUKIMBIRI, a Tutsi man who had died before the Genocide, were exhumed and thrown aside on the pretext of searching his grave for guns his son who was in the RPF army might have hidden there. In Huye District, Tumba Sector, at a place called Cyarwa cy’Imana the grave of one of the parents of GATETE Polycalpe, who had died before the Genocide, was opened and
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the remains thrown around. The grave was destroyed and the steel reinforcements for the concrete were taken away.
E. Rape and sexual torture
Here are some examples of where these crimes were perpetrated: In Nyarugenge District, Kigali Sector, Birambo Cell, a man by the name of AKUTAZI raped a woman and afterwards killed her with a spike through her sexual organ. There is evidence that this type of crime was widespread because, at the time of digging up remains from such places as pit latrines to rebury them in dignity, some of them still had the spikes. In Cyanika District, in the General Assembly for Cyanika Parish, one GAKUBA Gaspard took away Valeriya and raped her, then killed her with a spike through her sexual organs. In Kayonza District, Rukara Sector, a girl called UWERA M. Dalie was raped and afterwards paraded naked through Karubamba Trading Centre as punishment for having rejected some of them in marriage. She was then killed and crucified on a tree until the RPA liberated the area and took down her body. In Kamonyi District, Karama Sector, a woman by the names of NYIRAMBONIMANA Marie castrated KAYIJUKA Marcel while he was alive; In KICUKIRO District, Gikondo Sector, Kanserege Cell, one BAZIRA Léonard and his son killed KARINAMARYO J. Chrisostome and castrated him. In Kamonyi District, Gacurabwenge Sector, one HATEGEKIMANA André raped a woman and did not kill her, but stabbed her with a knife on the thigh as a sign to remember him by; In Rubavu District, before a priest named NTAGARA was killed, he was handed over to women who raped and mocked him; In Rubavu District, Mutovu Sector, one SEBUNYANYAGARA Bernard who was being hunted was captured. A little hole was made on the ground and he was told that it was his wife and he must have sex with it! Among those who committed this despicable act was the Cell Coordinator by the name of NZIYUMVIRA Philippe, alias Gakoti, in collusion
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with soldiers under the command of NGOBOKA F. Xavier. Luckily enough, SEBUNYANYAGARA survived.
These are some of the acts of extreme cruelty committed against the Tutsi during the Genocide, with the aim of exterminating them so thoroughly that “future generations will wonder what a Tutsi looked like” The inhuman acts committed during the Genocide against Tutsi such as rape and sexual torture, cannibalism, dumping bodies into pit latrines and so on show to what extent the Tutsi were no longer considered as human beings and had lost the right to live.
Section 3: Some Gacaca cases that generated controversy
This section describes some of the cases tried by Gacaca Courts that generated controversy as well as cases that were not tried even after the files of the accused had been filed. This document explains how the cases were tried and the reasons why some of them were filed but never tried. Though it is natural for the parties to the case or the observers to give different accounts about the trial depending on their outlook, it is essential to ensure that the proceedings were conducted in accordance with the law.
1. Cases that generated controversy
This section mainly describes the trials of individuals who were opinion leaders during and after the Genocide. They include politicians, former opinion leaders, intellectuals, religious leaders and other religious figures, individuals from influential families, local government leaders and others.
The case of Mr. Ntawangundi Joseph (Ngoma District)
Mr. NTAWANGUNDI Joseph was the director of E.A.V GITWE during Genocide committed against Tutsis in 1994 after which he fled the country. He was accused of participating in the killings of NSABIMANA Felicien who was a teacher at E.A.V Gitwe and his younger brother as well as taking part in the killing of 6 victims who lost their lives at E.A.V GITWE in Rukira Sector, Ngoma District in the Eastern Province.
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The Sector Gacaca Courts of GITWE tried his case in absentia and sentenced him to 19 years in prison on 19/09/2007. He returned to the country soon after and first attempted to deny his identity claiming he does not know of and has never been to the area in which he is accused of having committed the crimes, claiming it is a case of mistaken identity. After being informed that the Court had convicted and sentenced him, he demanded a review of the Judgment and it was granted since he had been tried in absentia.
On 24/03/2010, the Sector Gacaca Court of Gitwe reviewed the Judgment of his case and sentenced him to 17 years in prison because he refused to plead guilty. On 29/03/2010 he addressed a letter to the chairperson of the Gacaca Court of Appeal in Gitwe Sector appealing against this conviction.
After this appeal, Mr. Ntawangundi Joseph addressed another letter to the chairperson of the Gacaca Court of Appeal in GITWE Sector confessing to the crimes, admitting guilt and remorse and requesting forgiveness on 02/04/2010. In his confession he admitted to having committed the following crimes:
Participation in the killings of Nsabimana Felicien and his younger brother who lost their lives at E.A.V GITWE; others implicated in the killings were MUTABAZI and MBEBA. He also confessed to collaborating in the killings of 6 other victims who lost their lives at E.A.V GITWE. However, the Gacaca Court of Appeal of GITWE Sector did not recognize his confession since it was given at the appeal level and he was sentenced to 17 years in prison on 15/04/2010 in accordance with article 58 mentioned above.
This case was widely broadcasted in local and international media mainly due to fact that Mr. Ntawangundi Joseph was also the vice chairperson of Ingabire Victoire in the FDU- INKINGI opposition party and therefore the Rwandan Government was being accused of imprisoning him in a scheme to silence Government opposition. This opinion was mostly expressed by members of his party, Ingabire Victoire and other followers of the party pointing out that he was arrested after returning to the country as part of the delegation of Ingabire Victoire who came to the
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country to register the party mentioned above and also because it was said that Ingabire Victoire intended to run for Presidential candidature of the Republic of Rwanda.
Some newspapers published that his arrest was an indication that there is no political freedom in Rwanda, that the current Government imprisons all who oppose it. This however was inaccurate since as described above, Mr Ntawangundi was sentenced in 2007 following testimonies against him made by citizens who saw him committing the crimes, this happened before his was even part of the political arena. In addition, after his arrest, he first attempted to deny the accusations claiming that he was being persecuted for belonging to the FDU-INKINGI party, then later admitted to crimes and requested forgiveness after realizing that his crimes during the Genocide had been brought to light. This proves that the claims of the various newspapers and some International Organizations or individuals that he was arrested in a scheme to silence the opposition were in fact inaccurate.
The case of Mr. Nzabakirante Melane (Ngororero District)
The case of Mr Nzabakirente Melane was broadcasted in the international media such as BBC Gahuzamiryango on the radio mainly because he was a brother to the former President Habyalimana Juvenal.
He was accused of robbing cattle from Gishwati, Muhanda Sector, and Ngororero District. Nzabakirente was tried by the Gacaca Court of Muhumyo Cell in Muhanda Sector on 15/08/2009. The first hearing was held in his absence and he was convicted of robbery of cattle. Members of his family demanded a review of the Judgment claiming that Nzabakirante died before the Genocide in 1989. The review of the judgment was held on 20/01/2011 by the same Gacaca Court of Muhumyo Cell that had held the first hearing. The Court found that the cattle were stolen by his sons after his death and they were not aware that some of the cattle belonged to Tutsis since the cattle usually grazed together in the same pasture. The Court found him innocent of the crime and ruled that the plaintiffs should present the complaint to Ordinary Courts since it was not a Genocide related crime.
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Despite the Court’s decision to exonerate Mr. Nzabakirante Melane, his family members and some human rights organizations continued to issue reports and various documents about the case stating that there is no justice in Rwanda.
Mr. Pascal Kalinganire the head of Organization for Peace, Justice and Democracy in Rwanda addressed an open letter to the Executive Secretary of the National Service for Gacaca Courts on 08/02/2010 stating that the Rwandan Government used Gacaca Courts to convict Mr. Ntawangundi who was outside the country during the Genocide (despite the fact that the individual in question admits to have been in the country) and that Mr. Nzabakirante Melane was being persecuted for being a relative of former President Habyalimana; ignoring even the fact that the Judgment of Nzabakirante’s case was reviewed and he was exonerated of Genocide crimes it was known that he was related to former President Habyalimana Yuvenali. Therefore his relation to the former President had no bearing on the Judgment of the case. The letter mentioned above was therefore stating inaccurate information.
The case of Mr. Ntawuruhunga Hassan alias Hadji (Ngororero District)
Ntawuruhunga Hassan was accused of participating in killings that took place at several locations in Ngororero District, most especially at Kesho in Muhanda sector, at Muramba Parish in Hindiro Sector and at the MRND office in Ngororero Sector. He was accused of organizing killings at all those locations during a meeting he chaired on 7/4/1994. The killings started on 8/4/1994 and his vehicles were used to transport the killers to all the locations.
The first hearing was held at the Mbuye Sector Gacaca Court where he was convicted of all these crimes and was sentenced to life imprisonment with special provisions on 18/09/2009. After appealing, his case was reviewed by the Gacaca Court of Appeal of Gahogo where he was acquitted on 12/10/2009 because he proved that he in fact did not attend the meeting and that the vehicle that allegedly transported killers was driven by his adult son Omar Hassan who owned the vehicle because he had given it to him. The Court ruled that the son Omar Hassan must be tried alone because criminal responsibility is personal.
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This case raised a lot of controversy because Ntawuruhunga Hassan Alias Hadji has a large family in Kabaya Sector that constantly complained about his case to various local authorities and he is also very wealthy and heads tea growers’ cooperatives in Ngororero District and in Nyabihu.
The case of Mugambira Aphrodice (Karongi District)
Mr. MUGAMBIRA Aphrodice was accused of inciting citizens to kill Tutsis in KIBUYE and in BISESERO by providing the necessary the logistics from his possessions (vehicle, cutlery, funds and a hotel). In the first instance he was tried by Gikondo Gacaca Court of the Sector where he was convicted of the crimes and was sentenced to life imprisonment with special provisions on 30/08/2009. His appeal review was tried by the Gikondo Gacaca Court of Appeal where he was again convicted and was sentenced to life imprisonment with special provisions. Mr. MUGAMBIRA Aphrodice appealed to the general assembly of Gikondo for his Judgment to be reviewed and his appeal was denied. According to him, his main grounds for appeal was that he had already been tried and was acquitted in Ordinary Court for these same crimes mentioned above that he was now convicted for by the Gacaca Court, he was referring to the Ruhengeri Court of Appeal.
After the General Assembly of Gikondo denied his appeal, he appealed to the National Service of Gacaca Courts for vindication. The National Service of Gacaca Courts delegated the Gacaca Court of Appeal of Nyarugunga to review the problem and compare the crimes for which Mr. Mugambira was tried in Ordinary Courts with those mentioned above for which he was tried by the Gacaca Court.
On 06/03/2010, after reviewing the case and comparing the documents from all of Mr. Mugambira’s previous trials on Genocide at both Ordinary and Gacaca Courts, the Nyarugunga Gacaca Court of Appeal ruled that he had already been tried for these crimes for which he was being tried in the Gacaca Courts. He had been tried for these crimes at Kibuye Court of First Instance and again at the Ruhengeri Court of Appeal and that their Judgments had been final; it ruled that the accused cannot be tried for these crimes again. The Court ordered his immediate
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release because the judgment of the first Gacaca Court for which he was incarcerated was not passed in accordance with the law. This case raised controversy because Mugambira Aphrodice is a very wealthy individual and is affiliated with influential Genocide survivors who were in opposition of the plaintiffs. In addition, his case had already been tried and a final verdict passed in Ordinary Court.
The case of MUNYAGASHEKE Isaac (Huye District)
Mr. Munyagasheke Isaac was accused of planning Genocide, distribution of machetes for the massacre of Tutsis, provision of vehicles for transportation of Interahamwe killers to the killing locations, betraying Tutsis who had fled into his home to be killed and participating in several rapes committed in Butare town. During the first hearing, Mr. Munyagasheke was tried by Gikondo Gacaca Court of the Sector and he was convicted of these crimes and sentenced to life imprisonment with special provisions on 13/09/2009. At the appeal level, his case was tried by Gikondo Gacaca Court of appeal which convicted him and sentenced him to life imprisonment with special provisions on 21/11/2009.
He then addressed a letter to the National Service for Gacaca Courts requesting for revision of his case. One of his grounds of appeal was the fact that he was classified in the wrong category considering the crimes he was accused of. His case was reviewed by Cyahafi Gacaca Court of appeal of Nyarugenge District. After revision this Court ruled that the crimes for which he is accused are not in the jurisdiction of Gacaca Courts and ordered the initial sentence to be revoked. The Court also ordered the provisional release of the suspect and his file to be submitted to the National Public Prosecution Authority for trial before competent Courts. The Gacaca Court found that the suspect has been accomplice to crimes committed by national level leaders such as George Rutaganda the former Vice President of MRND and Pauline Nyiramasuhuko who was the Party Minister and were being tried in Ordinary Courts along with their collaborators in accordance with article 2 of organic law no 16/2004 of the 19/06/2004 mentioned above.
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His file was submitted to the Prosecutor’s office and his case was tried at Huye High Court where he was acquitted on 23/06/2011. The case was controversial because the distinction made between Munyagasheke and his sons who committed Genocide was very difficult as they lived in his home and used his property to commit various crimes during the Genocide; in addition he is a wealthy individual who is influential in Huye District.
The case of Father SEKAMANA Denis (Huye District)
Father Denis Sekamana is a Roman Catholic Priest in Butare Diocese where he was the Parish Priest for Ruyenzi. He was accused of the following crimes: - Participating in the killings of people at the institution he was in charge of during the Genocide, Institut Catéchétique Africain (ICA), now known as Institut Supérieur de Pédagogie et de Catéchèse (ISPC) located at Taba in Butare Town, - being among those manning a roadblock near the ICA where people were killed and - storing the guns used at that roadblock where people were killed. Father Sekamana was arrested in September 1994 and imprisoned at Karubanda Prison on charges of Genocide and was later released in 1998.
During the first hearing of his case at the Butare Town Gacaca Court of the Sector, he only admitted manning the roadblock to ensure its security and denied all the other accusations. The Court found him guilty of the charges and he was sentenced to 15 in prison on 19/03/2008. The Court also revealed that Father Sekamana had knowingly hidden the truth about these crimes. Father Sekamana appealed and his case was tried by the Gacaca Court of Appeal at Butare Town where he was again found guilty of the crimes and sentenced to 15 years in prison on 06/04/2008. He continued to deny these crimes despite the fact that his accomplices in the crimes confirmed his involvement and the fact that human remains were exhumed at the site of that roadblock. His case was controversial because Father Denis SEKAMANA comes from an educated family and other supporters who constantly campaigned for his innocence on the internet and he was also supported by the Catholic Church.
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The case of Dr HABARUGIRA Pascal (Huye District)
Dr Habarugira Pascal was a medical doctor at the National University Hospital in Butare during the Genocide. He was first accused of committing crimes of Genocide by the Gacaca Court during the period of gathering of information in 2005. He was accused of participating in organizing the killing of Tutsis in Butare, of the killings that took place in the University Hospital in Butare where he is accused of handing over Tutsi patients to be killed, of the killing of Mukangango Venantie, of being among those manning the roadblock at Mukoni where many people were killed and of being a member of the "crisis committee" of Butare Town. On 05/09/2007 he was tried by the Sector Gacaca Court of Butare Town where he was convicted of all the crimes with exception of the first crime and he was sentenced to 30 years in prison.
Habarugira appealed against this Judgment and his case was reviewed by the Butare town Gacaca Court of Appeal where Judgment was passed on 06/02/2008 and he was again convicted for the same crimes and sentenced to 19 years in prison.
He then wrote to the General Assembly of Butare Town demanding that his case be reviewed and the Assembly denied his request through the letter of 16/04/2008 in accordance with the provisions of article 93 of the law governing Gacaca Courts. Dr Habarugira then wrote to the National Service of Gacaca Courts demanding the review of his case but his request was denied through the letter of 13/05/2009 due to the fact that his grounds for appeal do not warrant a review of his case in accordance with the law.
In his letters, Dr Habarugira continued to appeal to various authorities claiming that the Court of Appeal forced him to attend the hearing while unprepared despite the fact that it was him who had appealed against his case and that it was held upon his own request. He also claimed that he was not aware of the crimes for which he was convicted during the first hearing despite the fact that he was present when the Judgment was pronounced and that the Court of Appeal did not indicate the crimes for which he was convicted despite the fact that he was given a copy of his trial file which indicates the crimes for which he was convicted and which are also written on the arrest warrant with which he was served.
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His trial generated controversy because he is an intellectual, his family continued to appeal to various authorities especially human rights organizations such as LIPRODHOR, LDGL, HRW as well as various government authorities.
The case of SAFALI Stanley (Huye District)
Mr. Safari Stanley was accused of inciting citizens to commit Genocide, participating in the killing of people who were captured in the National University forest, colluding with the killers of 8 people who lost their lives at Rango, colluding with the killers of many people who lost their lives at Gateme in Cyarwa and colluding with the killers of KAYITESI Helena. He committed these crimes in Huye District. The first hearing of Mr. Safari was held at the Gacaca Court of Cyarwa -Cy‘Imana Sector where he demanded to be tried by a different Court.
His hearing was then conducted by Kimironko Gacaca Court of the Sector of Gasabo District; this Court tried the case where the crimes had been committed. He was present during the first sessions of the hearing but later fled and the Judgment was passed in his absence, he was convicted of the crimes on 06/06/2009 and was sentenced to life imprisonment with special provisions reserved for those accused of first category Genocide crimes that did not confess or admit their crimes.
Mr Safali’s case raised controversy because he was a Senator at the time of his hearing; he refused to attend the hearing claiming he was being persecuted because of his case against Twagiramungu Barnabé who had attempted to kill him because he was a member of MDR political party that was opposed to the Genocide.
The case of BYUMA François Xavier (Nyarugenge District)
Mr BYUMA François Xavier was accused of conspiring to kill a girl named BATAMURIZA even though he was unsuccessful. The evidence presented to the Court showed that Mr. Byuma in collusion with other Interahamwe killers seized Batamuriza Louise and took her to Biryogo
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Sector office to verify whether or not she was Tutsi. Before they could kill her because she had claimed to be an in-law of the Sector Coordinator, Amuri Karekezi was asked about that relationship, by providence, the Sector coordinator Karekezi confirmed to them that she was indeed his in-law and she survived.
The crime of conspiring to kill whether or not the intentions are successful is punishable according to article 51 of Organic Law no 16/2004 that governs Gacaca Courts mentioned above, relating to accusations of Genocide crimes of the second category, section 5. This crime warrants a sentence between 15 and 19 years for the accused who refuse to confess or admit their crimes in accordance with article 73 of this law. Byuma was also accused of attending a training camp and receiving a gun in a militia group known as Irebero which was under the command of SIMBIZI Stanis, the chairperson of CDR in Biryogo and of manning a roadblock.
During his first hearing conducted by Biryogo Gacaca Court of the Sector, Mr. Byuma was convicted of the crime and sentenced to 19 years in prison on the 27/05/2007. His appeal was tried by the Gacaca Court of Appeal in Biryogo, where he was again convicted of the crime and sentenced to 19 years in prison on 18/08/2007.
He appealed to the General Assembly of Biryogo Sector demanding that his case be reviewed and the appeal was granted. His case was reviewed by Rwikubo Gacaca Court of Appeal, Kigabiro Sector, Rwamagana District where he was convicted again and sentenced to 17 years and 6 months in prison.
His trial was followed by many local and international observers and he was assisted by Attorney Protais MUTEMBE. Mr. Byuma wrote to the National Service for Gacaca Courts requesting vindication which responded by informing him that his trial had been conducted in accordance with the law.
His case was controversial because he worked for various human rights organizations for a long time, including LIPRODHOR, and was the Vice Chairperson of LDGL and chairperson of a children’s rights organization known as “Turengere Umwana" during the time of his trial. For
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this reason, the human rights organizations he had been working with zealously protested against his trial in their reports and various internet websites. These organizations claimed that Byuma was not given a fair trial and due to their bias they continue to claim that he was given sentence mentioned above solely due to possession of a fire arm during the period of the Genocide ignoring the other crimes for which he was convicted82. It should be noted that even the lawyer who defended him mentioned above was hired by Human Rights Watch and provided by ASF83. It is sad to imagine that an individual who was quite knowledgeable about value of human rights would violate the rights of fellow human beings!
The case of Bishop MUNYAGISAKA Philémon (Kicukiro District)
Bishop MUNYAGISAKA Philemon was accused of attending meetings organized to prepare the killings, inciting the youth to commit Genocide, manning a roadblock and collaborating in the killing of a child known as Kadenesi who was killed after being captured at his home. The case file of Bishop MUNYAGISAKA Philemon was instructed Kinunga Cell Gacaca Court because these crimes were committed in Gikondo Sector, Kicukiro District. During the first hearing conducted by Gikondo Sector Gacaca Court he was convicted of the crimes mentioned above with exception of the crime of manning a roadblock. After finding him guilty of the crimes which included first category crimes, the Court sentenced him to life imprisonment with special provisions on 15/08/2009.
His appeal was tried by Kabare Gacaca Court of Appeal of Muhazi Sector, Rwamagana District, Eastern Province because he had written to the National Service for Gacaca Courts requesting that his case be tried by another Court that is not from the Gikondo area. At this hearing he was also convicted for collusion in the killing of Kadenesi because he opened for the killers who were in pursuit of the victim. He was also convicted for attending the Genocide preparation meetings in Gikondo Sector. The diary in which Bishop Munyagisaka recorded the minutes of these meetings which he admits belongs to him was the evidence to prove that he indeed attended these meetings. Bishop Munyagisaka was also convicted of the crime of inciting people
82 See HRW Report mentioned above, Page 30. 83 Same report, Page 31.
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to commit Genocide. The crimes of which he was accused place him in the first category, section 3 which stipulates a sentence of life imprisonment with special provisions for those who do not confess or admit to the crimes as provided for in article 51 and 72 of the Organic Law mentioned above.
Bishop MUNYAGISAKA Philémon appealed to the General Assembly of Gikondo requesting for his Judgment to be reviewed but his appeal was denied in writing, informing him that his grounds for demanding a review of the Judgment did not fulfil the conditions required by law to conduct a review of the Judgment. He then appealed to the National Service for Gacaca Courts requesting vindication which also reviewed his letter and responded in writing informing him that the proceedings of his trial were conducted in accordance with the law.
His case raised controversy because he was major figure of the Methodist Church in Rwanda and because he continued to claim that the accusations against him were brought up because of issues that were going on at the church in that area. However, the information about his role in the Genocide was first brought forward by Ms Mukagahima Spéciose in 2006 at the event when many human remains of persons who had been buried in a mass grave found at the Methodist Church in Gikondo were exhumed. It was during the period of information gathering and therefore had no link with the issues going on at that church.
The case of NIRERE Béatrice (Kicukiro District)
Ms Nirere Béatrice was accused of ordering the mounting of roadblocks on which people were killed, of manning roadblocks, of inciting Genocide and also of distributing medals and scarves to the interahamwe killers to help them identify one another during the Genocide operations. These crimes were committed in Kicukiro District, Kanombe Sector, Ayinsanga Cell. At first instance Ms Nirere Béatrice was tried by Gikondo Gacaca Court of Sector. Ms. Nirere Béatrice appealed to the National Service for Gacaca Courts that her case be tried by another Court at the level of appeal so as to get a fair trial and therefore her case was tried by Rwikubo Gacaca Court of Appeal, from Kigabiro Sector, Rwamagana District, Eastern Province.
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During Genocide Ms Nirere Béatrice was the Deputy Prefet in charge of social affairs in the former Byumba Prefecture but she resided in Ayinsanga Cell, Kanombe Sector, Kigali City. After Genocide she did not return to provide any information about the crimes committed in the Cell in which she resided. Her case file was first submitted to Kanombe Gacaca Court of the Sector but when the hearing began the Court found that the crimes of which she was being accused placed her in the first category and she was therefore placed in the first category.
The case was then submitted to the Gikondo Gacaca Court of the Sector, Kicukiro District upon the request of the General Assembly of Kanombe Sector because some of the Inyangamugayo judges in the Gacaca Court of that Sector were at some point linked to the crimes she was being accused of which rendered the Court potentially biased. Gikondo Gacaca Court of Sector held her hearing on 28/02/2009 where she was convicted of the crimes and sentenced to life imprisonment with special provisions reserved for those accused of first category crimes Genocide who refuse to confess. After her conviction she appealed demanding to be tried by a Gacaca Court from a different area.
Her appeal was heard by Rwikobo Gacaca Court of Appeal of Kigabiro Sector, Rwamagana District where she was again sentenced to life imprisonment with special provisions owing to the evidence presented that proved her involvement in the crimes mentioned above. She appealed to the General Assembly of Gikondo Sector that her Judgment be reviewed and was denied due to unfounded grounds.
Ms Nirere Béatrice then wrote to the National Service for Gacaca Courts requesting vindication and that her case should be transferred to the National public Prosecution Authority because it is beyond the jurisdiction of Gacaca Courts. Her request was denied in writing, informing her that she had no grounds to appeal against Judgment because the Gacaca Courts have jurisdiction over individuals who were in the position of Vie Bourgmestre as she was during the Genocide.
This case raised controversy because she was a parliamentarian at the time of her hearing and was once the Deputy Prefet of the former Byumba Prefecture.
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The case of MUKEZAMFURA Alfred (Nyarugenge District)
Mr. MUKEZAMFURA Alfred was accused of inciting people to commit Genocide through the newspaper “IMVAHO”, of colluding in the killing of SHABAKAKA who was his neighbour. His first hearing was conducted by Gacaca Court of Nyakabanda Sector. His appeal was tried by Nyakabanda Gacaca Court of Appeal.
His first hearing was held in absentia and he was sentenced to life imprisonment with special provisions, after hearing of the Judgment of the Court he appealed in letter pledging that he shall be present for the hearing. His appeal hearing was scheduled by Nyakabanda Gacaca Court of Appeal but he was summoned 2 times but he did not appear. On the third session the hearing was held in his absence in accordance with article 98 and he was convicted of the crimes and was sentenced to life imprisonment with special provisions.
Mr. Mukezamfura Alfred has been the Speaker of the Chamber of Deputies of Parliament during the time of his hearings and many people including journalists and fellow Parliamentarians demanded to know how he was allowed to hold such position of the Parliament despite the fact that he was a Genocide suspect. However, according to the law, every person is presumed innocent as long as he or she has not yet been convicted by a competent Court of Law. It should be noted that Mr Mukezamfura was summoned to the Gacaca Court during the data collection phase to provide information regarding crimes he was accused of and then during his hearings he failed to appear but rather sent a letter explaining that he would be absent because he had gone for medical treatment abroad from where he never returned.
The case of MBYARIYEHE Gabriel (Nyarugenge District)
Mr. MBYARIYEHE Gabriel was the coordinator of Nyarugenge Sector, Nyarugenge Commune in the Prefecture of Kigali City during the Genocide. He was accused of plundering property in Nyarugenge District, Nyarugenge Sector, Quartier Commercial Cell. His hearing at first instance was conducted by Quartier Commercial Gacaca Court of the Cell and his case was reviewed by Rwabutenge Gacaca Court of Appeal of Gahanga Sector, Kicukiro District.
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Mr. MBYARIYEHE Gabriel was accused of plundering the property of Tutsis who were being persecuted in 1990 and in other subsequent years accusing them of being spies of the Inkotanyi. During his first hearing at the Quartier Commercial Gacaca Court of the Cell, he lost the case and was ordered to repay eight hundred and thirty two million, nine hundred and ninety nine thousand, three hundred and one Rwandan francs (832, 999, 301 RWF). His daughter who was representing him; Ms MUKANTAGWERA Janvière requested for a review of the Judgment and her request was granted. The National Service for Gacaca Courts transferred the case to Rwabutenge Gacaca Court of Appeal. The Court found him innocent of the crimes since the property of the Tutsis who were accused of being spies of the Inkotanyi were auctioned by the Government authorities of the time; the Court also found that after the Genocide, those who lost their property requested the current authorities for compensation for their property that was auctioned by the former authorities. After the Court found written evidence that the Government had compensated them for their lost property, it was decided that Mr. MBYARIYEHE Gabriel is innocent. It should be noted that these hearings were held in the absence of Mbyariyehe Gabriel because his whereabouts are unknown.
His trial was controversial because among the plaintiffs were some wealthy business people who are influential in Kigali City such as RUMONGI Longin, RUHAMYAMBUGA Paul, KAYIHURA Claver, RWIGARA Assinapol, Ms MUKABERA Consolata (representing the late RUTAGENGWA Costica who was killed in the Genocide against Tutsi) and Ms. Anastasie MUKAKIZIMA representing the late MUNYAMPUNDU François who was also killed in the Genocide and also because the value of the case was very high.
The case of Father NDAGIJIMANA Joseph (Ruhango District)
Father NDAGIJIMANA Joseph, resident of Byimana Sector in Ruhango District is accused of having attended several meetings that organized the killings in Mukingi Commune, of colluding with Mr. NTIYAMIRA who was a notorious Interahamwe killer in the commune, of inciting citizens to commit Genocide. He is also accused of colluding with Mr. RUTAYISIRE Jean Alias TAMBYA who is notorious for the massacres of multitudes. Father NDAGIJIMANA was also accused of participating in the murder of Priests killed at Bukomero after being brought from
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Kabgayi, participating in the killing that took place in Kabgayi and of chasing away Tutsis who fled into the Byimana Parish where he was the Parish Priest.
Father Joseph Ndagijimana’s case was first tried by Ordinary Courts. His first hearing was held at the Gitarama Court of First Instance and he was convicted of all these crimes and sentenced to capital punishment, in the year 2000 because the death penalty was still applicable under Rwandan law.
In accordance with the amendment of 19/05/2008 of the Organic Law governing Gacaca Courts, the case file of Father Ndagijimana was submitted to the Kamusenyi Gacaca Court of Appeal for review. That Gacaca Court under unclear circumstances cleared him of all charges.
Plaintiffs in the case, who include Member of Parliament MUKAMUGEMA Alphonsine and Ms MUKANSANGA Marguerite, immediately requested for review of the judgment and the General Assembly of Kamusenyi decided to grant the review of the case. During the review, Father Ndagijimana was tried by Nyanza Gacaca Court of Appeal of Nyanza District. He was convicted of the crimes and was sentenced to life imprisonment with special provisions. His case was controversial because people were surprised by the fact that a man of the cloth could commit such atrocious Genocide crimes since he had even abandoned the priestly attire and replaced it with Military clothing and carried a firearm during the Genocide!
The case of NTAGANDA Bernard (Ruhango District)
Mr. NTAGANDA Bernard was accused of participating in the killing of MUGUNGA Bosco, MUSONERA, NGENDAHIMANA Emmanuel and KAMBANDA Cassien; these crimes were committed in Kinazi Sector, Ruhango District. NTAGANDA Bernard was tried by Kinazi Gacaca Court of the Sector and acquitted of the crimes on 04/12/2007 and no one appealed against the judgement. He was also suspected of having participated in rape crimes but the victim did not file a case against him.
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Despite the fact that Mr. Ntaganda Bernard was tried by the Kinazi Gacaca Court of the Sector and was found innocent, he later stated that “The Gacaca Courts are sentencing Rwandans basing on their physical appearance”, and that “Gacaca is a clique of extremists”. These statements created much controversy and turned citizens against the Government policy which are among the offences he is currently being tried for by the Public Prosecution Authority. The case was ironic because the very same Gacaca Court he accuses of being a clique of extremists who sentence people basing on their physical appearance had actually tried him and cleared him!
The case of MUKARUBAYIZA Marie (Nyanza District)
Ms Marie MUKARUBAYIZA was accused of conspiring against late Félicitée MUKANTAGARA and his child who had fled into her house during the Genocide to be killed. She was tried for this crime by the Muyira Gacaca Court of the Sector and sentenced to 19 years in prison. After this judgment she appealed and her appeal was heard Muyira Gacaca Court of Appeal which cleared her of the crime due to lack of tangible evidence establishing her involvement in the crime mentioned above.
During the appeal hearing, it was revealed that Félicité MUKANTAGARA was killed by the two sons of Languida NYIRAMBIBI namely; SENGORORE and BYAMAMANA. During the time of this hearing SENGORORE had already passed away but BYAMAMANA had been provisionally released from prison following the Presidential communiqué because he had confessed his crimes and he continued to confess that it was he and his brother SENGORORE who had killed MUKANTAGARA and that MUKARUBAYIZA played no role whatsoever in this killing because he and his brother had always known the late and had seen him flee to the house of MUKARUBAYIZA Mariya for sanctuary.
This trial was controversial because MUKARUBAYIZA Marie has a very wealthy son who is influential in Kigali City known as Bayingana Alexis the owner of Alpha Palace Hotel. The plaintiffs were very adamant that she be sentenced claiming that only the poor are sentenced at Gacaca Courts. This however is inaccurate, because the Gacaca Courts have tried anyone suspected of Genocide crimes against whom there are serious evidence. On the other hand,
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wealthy suspects wrote to the National Service of Gacaca Courts claiming that they were being falsely accused of committing Genocide crimes by people who are envious of their fortune. All these allegations appear to be excuses of the parties to the case in general because it is natural for the losing party to invent false reasons to explain how they are being persecuted.
With the aim of reviewing the court decision, the victim Mrs. MUKANTARARUKA Gertrude requested the NSGC to analyze the case and evidence given by Mr SEMAHE Innocent a convict of genocide crimes.
After analyzing this case and the testimony of Mr SEMAHE Innocent, the NSGC found that his testimony was not determining to review the case. Indeed, Mr SEMAHE Innocent, in his testimony, showed no criminal involvement of Mrs Marie MUKARUBAYIZA in the killing of late MUKANTAGARA Félicitée and her daughter Gaudence.
Consequently, the NSGC sent a response letter with a copy of Mr SEMAHE’s testimony to the victim.
The case of NSENGIYUMVA Laurent (Muhanga District)
Mr. Nsengiyumva Laurent was accused of participating in Genocide crimes committed in Kabgayi Muhanga District where many Tutsis from various communes had taken refuge. He is accused of having prepared a list of Tutsi teachers who were among the refugees and deceiving them that their signatures were required because their salaries had arrived. All who revealed themselves to sign the list were killed. In his first hearing conducted by Jabana Gacaca Court of the Sector, he was convicted of the crime because it was revealed that he had indeed used these lists to reveal those who must be killed, and he was sentenced to 19 years in prison. After this judgment he appealed and requested to be tried by a different Court of Appeal because he claimed the Inyangamugayo judges of the Jabana Gacaca Court of Appeal would be biased. His request was granted and his case was transferred to Kicukiro Gacaca Court of Appeal.
During the appeals hearing the Court summoned the plaintiffs three times in vain because they claimed the Inyangamugayo judges were also biased and so the Kicukiro Gacaca Court of Appeal wrote to the National Service of Gacaca Courts requesting that the case be transferred to
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another Court of Appeal. The National Service for Gacaca Courts delegated Gisozi Gacaca Court of Appeal to try the case. When the time came for hearing to begin the Gisozi Gacaca Court of Appeal summoned the plaintiffs, the accused and the witnesses and they all presented themselves for the hearing.
In the appeal tried by Gisozi Gacaca Court of Appeal, Mr Nsengiyumva Laurent was again convicted of the crime of making a list of Tutsi teachers in Kabgayi to be killed. After considering the gravity of the crime of which he was accused and in accordance with article 92 of the Organic Law governing Gacaca Courts, he was placed in the first category, section 3 and sentenced him to life imprisonment with special provisions on 06/12/2009 in accordance with article 72 of the Organic Law governing Gacaca Courts. He then appealed for the judgment to be reviewed and so a General Assembly was held including Inyangamugayo judges from the General Assembly of Gihuma (where the crime was committed), Jabana Gacaca Court of the Sector, Kicukiro Gacaca Court of Appeal and the Gisozi Gacaca Court of Appeal to review his appeal and found that his grounds for appeal did not satisfy the conditions in article 93 governing grounds for appeal and the General Assembly denied his request.
The trial was controversial because the suspect was accused with Mr. Hategeka Augustin who was once the Prefet of Gitarama Prefecture in this crime yet the latter was found innocent therefore he too ought to be acquitted. This was a common occurrence in Gacaca Courts proceedings whereby in some cases various individuals were accused of participating in the same crime or crimes in the same area yet some are found guilty and others were acquitted depending on the presented evidences.
Regarding the Church of Kabgayi where crimes took place, Rwandans have always considered the house of God to be a sanctuary where no harm may befall a person but rather a source of blessings. Even during the mass killing of Tutsis and burining of their homes in 1959, those who fled into the churches survived. But in 1994 that was not the case.
Many Tutsis were told to flee to the churches and other houses of worship, that they would be safe from harm. That was why those who lived near the Church of Kabgayi took refuge there as
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well as those from many surrounding communes, including others from more distant localities84. The killers followed them from their communes of origin and captured them in the church where they massacred them all night long working with the police of the Nyamabuye Communal Police of Nyamabuye, Soldiers, Gendarme and Interahamwe militia.
Most of the massacres that were committed in houses of worship were usually done with the collaboration of those in charge of the establishments. For example Father Athanase SEROMBA who was the Parish Priest of Nyange who collaborated with the killers to massacre the Tutsi who had fled into that church and even ordered that the church be demolished over the Tutsi who were in it and over 2000 people were buried alive using a bulldozer. That massacre of Tutsi who had fled in Nyange church was committed by Father Seromba in collusion with Grégoire Ndahimana the Head of Kivumu Commune, interahamwe killers and other killers. Both of whom were sentenced by the International Criminal Tribunal for Rwanda in Arusha, Tanzania.
The case of HATEGEKA Augustin (Muhanga District)
Mr. HATEGEKA Augustin was accused of colluding in the killing of Tutsi teachers who had taken refuge in Kabgayi and manning a roadblock in front of his house in Ruvumera, Nyamabuye Sector. Regarding the first crime, he is accused of making a list of Tutsi teachers and giving it to the killers who deceived the teachers that their signatures were required because their salaries had arrived. All who revealed themselves to sign the list were killed.
His first hearing of this case was conducted by the Jabana Gacaca Court of the Sector where he was convicted for the crime and was sentenced to life imprisonment with special provisions on 08/07/2009. He immediately wrote to the National Service of Gacaca Courts demanding that his appeal be tried by another court claiming that he would not get a fair trial from Jabana Courts.
84 As shown by supplementary data collected at the Cathedral of Kabgayi, those who took refuge there had come from all the Communes of Gitarama Prefecture, with others from the Communes of Kibirira, Satinsyi, Kivumu, Birambo, Butamwa, and elsewhere.
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The President of Jabana Gacaca Court of Appeal also requested the National Service of Gacaca Courts to transfer the case to another Court of Appeal in accordance with article 23 of the Organic Law mentioned above.
In accordance with the article mentioned above and in accordance with article 50 of the Organic Law governing Gacaca Courts, the National Service of Gacaca Courts delegated the Kicukiro Gacaca Court of Appeal to handle the case. During the Appeal hearing the Kicukiro Gacaca Court of Appeal found no irrefutable evidence proving that he actually made that list and give it to the killers because there was no witness to testify to the fact. Therefore, the Court acquitted him of the crime he was accused of on 25/08/2009. After this judgment, his accusers appealed for the judgment to be reviewed and a General Assembly made of Inyangamugayo judges from the General Assembly of Gihuma (where the crime took place), the Gacaca Court of Jabana Sector and the Kicukiro Gacaca Court of Appeal was held to examine the request and decided that it had no legal grounds and rejected the review of judgement request. Regarding the crime of manning a roadblock at Ruvumera, he was tried by the Gahogo Gacaca Court of the Sector and was found innocent and no one appealed against the judgment.
His trial was mentioned many times in the newspapers because he is widely known in Muhanga District for being the former Prefet of Gitarama Prefecture.
The case of Dr NIYITEGEKA Théoneste (Muhanga District)
Dr NIYITEGEKA Théoneste was accused of participation in Genocide crimes that took place in Kabgayi Hospital in Muhanga District in 1994, more particularly regarding the patients in the recovery room; (room 3) who were under his care and were killed in a dehumanizing manner. He was accused of revealing and handing over Tutsi patients by placing a mark on their beds to allow the killers to identify them. A Belgian Doctor known as Dr LE GRAND who had been replaced by Dr Niyitegeka in the recovery room witnessed the atrocities and tried to fight the killers but he was overpowered and beaten until he fled and returned to Belgium.
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During the first hearing, the Gacaca Court of Gihuma Sector acquitted him of the crime on 30/10/2007, and plaintiffs in the case appealed against the judgment.
The appeal was tried by Gihuma Gacaca Court of Appeal where he was convicted for the crimes and sentenced to 15 years in prison. Dr NIYITEGEKA appealed to the National Service for Gacaca Courts requesting that the judgment be reviewed, after examining the appeal it was found to be groundless basing on article 93 of the Organic law no 16/2004 mentioned above and his appeal was denied.
His case was mentioned in many newspapers because Mr Niyitegeka Théoneste wanted to run for President and stated on radio and in various newspapers that he was being accused at the Gacaca Courts in a bid to foil his campaign. As mentioned above, Dr Niyitegeka was being accused of his own participation in Genocide crimes that are not related to his aspirations to campaign for the position of President of the Republic. In addition, the fact that an individual is campaigning for a leadership position does not mean that they cannot be tried for crimes they might have committed.
The case of Pastor NTIHANABAYO Peday (Muhanga District)
Pastor Ntihanabayo Peday is accused of participating in the killing of a young man called Mpumuje Eliézaire who was living at his house before and during the Genocide and worshiped at the same Seventh Day Adventist Church.
During the data collection phase, neither Pastor Ntihanabayo nor his house worker named Ruzindana Esdras offered any information about the killing of Mpumuje who was living with them at the time. When the family of the victim realized that both the Pastor and his house worker were not being honest about his death they reported the case to the Gacaca Court. Pastor Peday was first tried for this crime by Gacaca Court of Gahogo Sector and found innocent; then his accusers appealed against the judgment.
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The appeal hearing of Pastor Ntihanabayo was conducted by Gahogo Gacaca Court of Appeal where he was asked to explain the death of Mpumuje who was living in his house and he told the Court to ask the question to his house worker who in turn told the Court to ask the question to Pastor Peday claiming that he was not at home when Mpumuje was killed and they continued this charade in a bid to mislead the court.
The most suspicious fact of the case is that the body of the victim were discovered buried in front of the Pastor’s house according to the testimony of accusing witness. Before they started looking for the body of the victim, Pastor Peday stated that even if they find the body, it will of a different victim who might have been killed while fleeing. Yet the Pastor had not reported witnessing this killing until 16 years later. After exhuming the remains, they were found to be wearing clothes known to belong to the victim according to his family and others who knew him. This caused traumatic reactions among Genocide survivors attending the hearing.
Pastor Peday continued building contradicting arguments during the hearing claiming he was being hunted himself. When asked who was hunting him, he said nothing and provided no evidence to support the claim, he also claimed that the victim was killed in his absence and it was later proved during the hearing that he was in fact present during the killing. This appeal hearing lasted five days;11th, 12th,15th, 16th and 17th February 2010; and both parties to the case and their witnesses were given ample time to make the cases before a large audience of people from the area who had come to attend the hearing. Basing on the evidence presented during the hearing, the Court convicted the Pastor of the crime and sentenced him to life imprisonment with special provisions On 17/02/2010 in accordance with article 51 and article 72 of the Organic Law governing Gacaca Courts because he was the head of the Seventh Day Adventist Church in that Commune during the Genocide, which places him in the first category. The accused requested the General Assembly of Gahogo for a review of his case and the Assembly held a meeting to examine the appeal and found that it had no legal grounds and thus his request was denied.
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Regarding the case of Mr Ruzindana Esdras who was the house worker of Pastor Ntihanabayo, the Court found him guilty of the crime too and sentenced him to 19 years in prison.
This case was mentioned numerous times in the news papers because Pastor Ntihanabayo Peday was being supported by the leadership of the Seventh Day Adventist Church. In addition, his family also protested about the judgment to several Government authorities claiming his was innocent even though the hearing was actually conducted in accordance with the law.
The case of MUHIRE Simon (Nyagatare District)
Mr. Muhire Simon was accused of conspiring against Tutsis by accusing them of being Inkotanyi spies resulting in their deaths. The victims are Gatera, Gatsinzi and Ntaganda. He was accused of being a member of a militia and collusion with the military under Colonel Nsabimana Deogratias Castal in pointing out Tutsi women to be raped by soldiers. These crimes were committed in Nyagatare Cell I and Nyagatare Cell II in Nyagatare Sector, Nyagatare District.
Following the conflict that was generated by this case among the Inyangamugayo judges of Gacaca Court of Nyagatare Sector, the National Service of Gacaca Courts made the decision to transfer it to a different Court in order to ensure the respect of the main principles governing a fair trial. It is for this reason that his first hearing was held at the Gakenke Gacaca Court of the Sector in Gatsibo District which convicted him of the crime and sentenced to life imprisonment with special provisions. His appeal hearing was conducted by Gakenke Gacaca Court of Appeal which convicted him of other crimes in addition to the crime of identifying Tutsi women to be raped by soldiers and sentenced to 19 years in prison. The convicted requested for a review of his case on grounds that some of his witnesses who were scheduled to testify had not yet testified. The witnesses included former soldiers of EX-FAR who were stationed in Nyagatare, and request was accepted so that the testimony of his witnesses may be heard.
His case file was transferred to Rwikubo Gacaca Court of Appeal of Kigabiro Sector which cleared the suspect of the collusion to rape but convicted him of other crimes mentioned above
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and sentenced him to 19 years. Mr Muhire continued to appeal to the National Service of Gacaca Courts presenting new evidence that the crimes for which he was convicted were committed by ex-soldiers in the former Rwandan Army yet guilt for a crime is only punishable individually. He proved that the victims listed above were killed by the soldiers of the former Rwandan Army. The National Service of Gacaca Courts accepted his plea and delegated the Cyahafi Gacaca Court of Appeal in Nyarugenge District to examine the nature of his claims and the new evidence provided by the convicted. The Cyahafi Gacaca Court of Appeal reviewed the case and found that there is no tangible evidence proving the involvement of Mr Muhire in the deaths of Tutsi mentioned above because the initial accusation that led to his conviction claimed that he conspired against them because before they were killed he is quoted to have said those Tutsi are the reason the Inyenzi attack us“.
The Court found that the victims were indeed killed by the soldiers of the former Rwandan Army, that no one actually witnessed Mr Muhire conspiring against them to the soldiers who killed them or provide irrefutable evidence pointing to his role in their deaths. Having found that there is doubt regarding his involvement in the deaths of the victims; the Court cleared him basing on the principle of providing benefit of doubt to the suspect.
Regarding the accusation of acting as a soldier Mr Muhire explained to the Court that he was being accused of this because of a Military jacket that he wore when he fled an attack into the soldier’s camp and they lent him the jacket because he was naked and he returned the jacket the next morning. Having found that he did not commit any crime taking advantage of the Military jacket, the Court acquitted him because if one wears Military clothing but does not use them to commit any crime is not liable before Gacaca Courts. Plaintiffs appealed to the National Service of Gacaca Courts protesting against this judgment, and the Service informed them that the proceedings were conducted in accordance with the law. The hearing was held in the presence of all parties to the case and because it had become a high profile case it was observed and followed by many people and various authorities. These include a representative of the of the National Human Rights Commission, a representative of the National Security Service, a representative of Nyagatare District, a representative of the National Service of Gacaca Courts and representative of security services in Nyagatare District.
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The Case of RWABYANGA Kizito Gasatura
Mr Rwabyanga Kizito Gasatura is accused of participating in the killing of the following people: Kazerwa, Nyagatoma, Kajugujugu, Mushayija, and gasatsi in collusion with soldiers of the former Rwanda Army and stealing the cattle they were grazing. These crimes were committed at Rukorota Cell in Nyagatare Sector, Nyagatare District. The case file of Rwabyanga Kizito was handled by the Court of Rukorota Cell after being accused by one of the survivors of the attack. The witness stated that Kizito come with soldiers and found them grazing cattle and asked them if they were Tutsi, then Kizito said “I know these guys, they are Tutsi, take away these sons of dogs“. The soldiers took them along with their cattle to the Military Camp in Nyagatare where Mushayija and Gasatsi were already being held. They then took them to the Muvumba river, stabbed them with knives and threw them into the river. However, one of the victims survived after being thrown into the river and left for dead. The first hearing of the case was held at the Gacaca Court of Rwempasha Sector where he was convicted and sentenced to 28 years in prison 28.
Mr Kizito immediately appealed, and his appeal was tried by Rwempasha Gacaca Court of Appeal where he was again convicted and sentenced to 30 years in prison and a payment 71,700,000 for the cattle he stole. Mr Kizito appealed to the National Service of Gacaca Courts and other authorities requesting vindication claiming that since he is also Tutsi he could not have colluded with the killers while he was himself being hunted. The National Service of Gacaca Courts replied informing him that he must accept the decision of the Rwempasha Gacaca Court of Appeal because it was the Court finding that even though he was a Tutsi and Tutsi were being hunted, he in fact colluded with the killers as testified about during his trial. It should be noted that as mentioned above, any individual who participated in Genocide crimes shall be answerable to the Courts regardless of their ethnic group.
The trial of Father Nturiye Edouard Alias Simba (Rubavu District)
Father Nturiye Edouard also known as Simba was first tried for Genocide crimes in Ordinary Court before being tried by Gacaca Court. Kibuye Court of First Instance tried him for the crime
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of colluding in the massacre of over 60 Tutsis who had fled into the small seminary in Nyundo and convicted him for the crime and sentenced him to death. Father Nturiye appealed, and was tried by the Ruhengeri Court of Appeal and acquitted.
This was followed by a new data collectionand he was accused of new crimes of participating in raids of Tutsi homes in collusion with Mr Byago, Jovani and the former coordinator of Nyundo Sector. Their raids took those who were being hunted out of their homes in which they were hiding and killed them, colluding in the killing of nuns who were killed at the former “red commune” now known as Gisenyi Sector in Rubavu District, and overseeing crime of Genocide.
He was first tried for these crimes by the Gacaca Court of Kimironko Sector in Gasabo District where he was convicted and sentenced to life imprisonment with special provisions. His appeal was tried by Kimironko Gacaca Court of appeal which convicted him again of the crimes and sentenced him to life imprisonment with special provisions reserved for those accused of crimes in the first category, section 3 who did not confess. Father Nturiye continued to appeal stating that Gacaca Court tried him for crimes which he was accused of in Ordinary Courts; which is not the case because he had never been tried for these crimes. This can be verified from the record of Judgment of his hearing in the Ordinary Court mentioned above.
The case of NYAGASAZA Mathias
Mr Nyagasaza Mathias born in Karago Sector, Nyabihu District was accused of inciting people to commit Genocide, of leading and overseeing Genocide activities including mounting roadblocks and commanding them and of killing and burning the homes of those who were targeted. These crimes were committed in the Western Province in Nyabihu District, Shyira Sector, Karago Sector and Jenda Sector as well as in Rubavu District, Gisenyi Sector.
His accusers testified that he chaired numerous meetings with interahamwe killers urging them to kill Tutsi and he is quoted to have said “You must kill the louse and its egg”. His accusers explain that by this saying he was instructing the killers to kill all Tutsi and make no exceptions, spare no one, not the elderly, not the children, not even the babies so as to completely
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exterminate the Tutsi. He is also accused of ordering the rounding up of Tutsis from Karago Commune, (his home Commune) and they were rounded up at the former Karago Commune and killed, their homes were burned using petrol that Nyagasaza provided.
He is accused individually for the crimes committed at all these Sectors with exception of the crimes committed at Nanga in Karago Sector where he is accused of committing the crimes together with Ntarwanda, Ngorora Pierre, Rukato, Mutangana, Habyalimana, Twagirayezu and Sebatashyi Bernard. In Shyira Sector, his case was tried by the Shyira Gacaca Court of the Sector and found innocent. In Karago Sector, his hearing was conducted by Kabaya Gacaca Court of the Sector (in Musanze District) where he was convicted of the crimes and sentenced to life imprisonment with special provisions. In Jenda Sector, his first instance hearing was conducted by Gacaca Court of Remera Sector (in Gasabo District) where he was sentenced to 19 years in prison.
Mr Nyagasaza appealed against the judgment of Remera Gacaca Court of Appeal and was again sentenced to 19 years in prison.
Mr. Nyagasaza Mathias appealed to the National Service of Gacaca Courts requesting vindication and the Service delegated Muhoza Gacaca Court of Appeal for the reviewof the case but Mr Nyagasaza Mathias passed away before the hearing and thus his case file was closed. His trial was controversial because when his accusers learned that his request for reviewof the case had been granted, they tried to oppose it by writing to various Government authorities and the head of Ibuka as well as various newspapers claiming that they may not get justice because Nyagasaza was a wealthy man who had even tried to bribe some of the survivors to change their testimonies but they rejected his offer. Mr Nyagasaza Mathias was the leader of the MRND ruling party during Genocide in Gisenyi Prefecture.
The case of WAZIRI Salumu (Rusizi District)
Mr WAZIRI Salumu, the son of Waziri Kimputu in Kamembe Sector, Rusizi District was accused of sponsoring a militia group of Interahamwe killers of the MRND party in Kamembe
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Sector and Mururu Sector in Rusizi District. His accusers stated that he provided the materials used to tailor uniforms of the killers. His first instance hearing was conducted by the Gacaca Court of Kamembe Sector in his absence and the Court found that he indeed had a dealership of clothing materials and that people in the area were known to purchase his materials to tailor clothes; that he never offered these materials for free but rather sold them for money. The Gacaca Court of Kamembe Sector decided this did not entail a genocide crime and he was acquitted and no one appealed against the judgment.
In Mururu Sector he was accused of sponsoring Interahamwe killers from that Sector by providing them with the materials for the uniforms they wore during their killing raids. At this Sector he was accused by the killers themselves stating that he donated the materials to them free of charge as his contribution to their killing activities; for this reason the Gacaca Court of Mururu Sector sentenced him to 30 years in his absence. His case was controversial in Kamembe Sector because his hearing was held in his absence and found innocent and also because he was a well a known businessman in Kamembe and is believed to be living abroad.
The case of BIZIMANA Japhet alias Kimararungu
Mr Bizimana Japhet alias Kimararungu is a Burundian National who was residing in Rwanda during the 1994 Genocide against Tutsis in Gasabo District, Remera Sector, Rukiri Cell I. He is accused of inciting people to commit Genocide, of overseeing crimes of Genocide involving the killing and destruction/plundering of property of the following people; Nyamutera, Barahira, Musaniwabo, Nkubiri, Mugeserakazi, Ibambasi and Gasana.
These two accusations were made at 2 different occasions and therefore 2 separate hearings were held by the Gacaca Court of Remera Sector.
Mr. Bizimana Japhet was tried in his absence since his whereabouts are unknown in accordance with article 98 and 99 of the Organic Law governing Gacaca Courts. In the first hearing Twahirwa Jean Bosco accused Bizimana Japhet of inciting people to commit Genocide and
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overseeing Genocide crimes including killings and destruction of property. The Court summoned the accused three times but he did not appear and the hearing was then held in his absence and judgment was passed on 21/02/2009. During this hearing the accuser did not specify the property that was destroyed. After reviewing the accusation and the testimony of the witnesses, the Court found him innocent of the crime.
On 15/11/2009, the victims in this case including Barahira, Nyamutera, Musaniwabo, Nkubiri, Mugeserakazi, Ibambasi and Gasana also filed a case against Bizimana Japhet alias Kimararungu for inciting people to commit Genocide, supervising and leading the killings, plundering and destroying their property. The Court again held a hearing in the absence of the accused in accordance with the articles mentioned above relating to accused persons whose whereabouts are unknown. The hearing related to the crime of plundering of property belonging to the individuals mentioned above committed by Bizimana Japhet in collusion with Ntabahwana Alphonse, Hagumimana Dominique, Nkirarwinshi Ladislas, Kabonabake Thomas, Bakuzakundi Michel, Mukurarinda Mathias and Twagiramungu Thomas.
The witnesses against him included Habiyaremye Assiel who was a night guard of Ntabahwana Alphonse himself a participant in this crime of destruction of property (currently incarcerated in Remera Prison), Karegeya Ignace and Mujawamaliriya both neighbours of Bizimana Japhet.
After reviewing these accusations and listening to the testimonies of the witnesses, the Remera Gacaca Court of the Sector found the accused guilty of the crime of destruction and plundering of property including houses and the their content and ordered them to refund each an amount of twenty four million two hundred and three thousand seven hundred and fifty Rwandan francs (24, 203, 750 RWF) and sentenced Bizimana Japhet for life imprisonment with speciall provisions. After the judgment was passed the accused appealed to the National Service of Gacaca Courts requesting vindication, but their appeal was found to be groundless and they were informed that the appeal is rejected.
Bizimana Japhet appealed to the National Service of Gacaca Courts again requesting another hearing in his presence since the hearings had been held in his absence and his request was
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granted. Just prior to the date scheduled for the hearing Bizimana Japhet wrote to the National Service of Gacaca Courts informing them that he was ill and would not be present for the hearing requesting that he be represented by his lawyer instead. The request was again granted and he delegated Attorney Twayigize Jean Claude to represent him.
The National Service of Gacaca Courts delegated the Nyakabanda Gacaca Court of Appeal to review the case of Bizimana Japhet and his associates and informed the Court that Bizimana Japhet shall be represented by his lawyer Twayigize Jean Claude.
At the beginning of the hearing at the Nyakabanda Gacaca Court of Appeal his accusers demanded that the hearing be limited to Bizimana Japhet individually because the others who colluded with him in the crime had already been tried and the grounds for this appeal were based on Bizimana Japhet alone. The National Service of Gacaca Courts examined their complaint and found that it had valid grounds and instructed the Court to conduct a hearing for Bizimana Japhet individually.
The Nyakabanda Gacaca Court of Appeal held the hearing of Bizimana Japhet who was represented by Attorney Twayigize Jean Claude on 08/10/2011, 30/10/2011 and 05/11/2011 and the judgment was passed on 27/11/2011, the Court found him guilty of destruction of property belonging to Tutsi and ordered him to reimburse an amount of twenty four million two hundred and three thousand seven hundred and fifty Rwandan francs (24, 203, 750 RWF).
This case was controversial because both parties to the case were very keen on commenting about the process of the hearing to the newspapers. On one hand, the accused Mr Bizimana Japhet told the papers that he was acquitted of all the crimes for which he was accused despite the fact that he was found guilty of destruction of property; instead he claimed that the government of Rwanda seeks to take possession of his house in Kigali City without any legal grounds. On the other hand, the plaintiffs were also aggressive and protested the way the suspect was not available to argue his case with them face to face but instead delegated a lawyer yet they had no lawyer of their own. For this reason they had boycotted the hearing and it was not until
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the National Service of Gacaca Courts advised them and explained to them that having a lawyer is not against the law governing Gacaca Courts that they accepted to participate in the hearing.
The case of NIYONZIMA PIYO
Mr Niyonzima Piyo of Ndera Sector, Gasabo District is accused of inciting people to commit Genocide, of manning a roadblock with a fire arm and Military clothing and of killing Nyamurangwa. His case was tried by Ndera Gacaca Court of the Sector on 03/06/2007 which found him innocent of the crimes. The plaintiffs in this case, appealed against the judgment and the hearing at the appeal level was conducted by Jabana Gacaca Court of Appeal on 15/01/2010 where he was sentenced to 20 years in prison. The suspect continued to appeal to the National Service of Gacaca Courts claiming to have new evidence including the fact that he was sentenced to a penalty reserved for first category Genocide convicts who confessed their crime and requested forgiveness yet he did not admit to having committed any of these crimes. He also pretended that he was convicted of killing Nyamurangwa who is still alive.
The National Service of Gacaca Courts considered his complaint and delegated the Nyarugaga Gacaca Court of Appeal to undertake a revision of his case to examine pretended new evidence. The hearing began on 25/11/2011 and the new evidence produced by the accused was examined. During this third hearing of the case Mr Ndibwami Eric who was also the main witness added a new accusation against Niyonzima of participating in the killing of his mother and demanded that the accused be tried for that crime as well. The Case was adjourned in order to first review this new charge. The Court reviewed the new charge and consulted the legal text guiding Gacaca Court hearings mentioned above and found that this constituted a new charge because it was not among the accusations presented during the initial. Therefore, the Court informed both parties to the case that new charges cannot be tried in review of a case. In addition the Court found that another individual had already been convicted for this crime. A man called Mutwa Frodouard who was charged with commanding a roadblock that was in front of Nyatanyi’s house where the woman was killed.
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After resolving this issue, the hearing continued and Niyonzima Piyo defended himself regarding all the accusations made against him. Regarding the accusation of bearing a firearm he explained the Sector Coordinator of Ndera handed him the firearm by force and ordered him to join the killing but that he returned the gun before killing anyone. Regarding the accusation of manning a roadblock and wearing Military clothing he denied it and some witnesses testified in his favor. Regarding the death of Nyamurangwa, the witnesses including his own wife testified that the old man was very much alive and had just shifted to Mutara and was never killed during the Genocide. After the Court heard and reviewed the testimonies of both neighbours and all the evidence presented by both parties to the case, a decision was made public on 23/12/2011 in which Mr Niyonzima Piyo was cleared of the crimes for which he was accused. However, his accusers were displeased with the verdict.
The case of AMURI Vincent
Mr Amuri Vincent a resident of Rugenge Cell, Muhima Sector in Nyarugenge District was accused of conspiring against Rutare Pierre who had taken refuge at his home during Genocide against Tutsi. He was accused by the sisters of the late Rutare; Nyiramirambi Mugorewicyeza Virginie and Mujawamariya Marie Jeanne. The witnesses testifying against him were Longolongo Hussein former inmate of Kigali Central Prison for his role in Genocide crimes, Havugimana Jean Alias Kabwotso, Rwabuhungu Jerôme also an inmate of Kigali Central Prison for his role in Genocide crimes.
The first instance hearing were conducted by Gacaca Court of Rugenge Sector which found that Amuri Vincent had given Rutare Pierre sanctuary at his home during the Genocide for a period of one week, he even built for him a secret chamber in the house. He informed the Court that the killers had actually searched his house twice looking for him but failed to find him and that they found him during a third search after his house worker of Amuri Vincent called Hakiza Alias Rudiha revealed to them where he was hiding. The Court found that he had no intention of having Rutare killed and cleared him.
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At the appeal the case was tried by Cyahafi Gacaca Court of Appeal and he was sentenced to 15 years in prison. Mr. Amuri Vincent requested for a review of his case, and his request was granted and Gahogo Gacaca Court of Appeal tried the case and basing on the testimony of witnesses mentioned above who were themselves convicted for Genocide crimes and testified that Amuri Vincent had called them over to take Rutare away, he was convicted of this crime and sentenced to 19 years in prison.
Mr AMURI Vincent appealed to the National Service of Gacaca Courts requesting vindication presenting new evidence from witnesses who knew about the death of the late Rutare Pierre and explaining that he was being falsely accused by the prisoners of Kigali Central Prison. The National Service of Gacaca Courts examined the new the testimony and delegated Muhoza Gacaca Court of Appeal to try the case and examine the evidence. During the hearing conducted by Muhoza Gacaca Court of Appeal, some of the prisoners who had testified against him were present and they testified that a plot to falsely accuse him was conceived in the prison by Longolongo Hussein and fellow in-mates as a revenge attempt because the suspect had testified against them for killing Rutare and so they planned to bring him in prison by claiming that he who approached them and told them to come and kill Rutare. In addition during the hearing Longolongo changed his testimony and admitted that Amuri Vincent did not approach them and tell them to come and take Rutare away.
The testimonies presented to the Court revealed that Rutare was betrayed by Hakiza Alias Rudiha, the house worker of Amuri and taken away in a raid led by Rwabuhungu Jerôme along with Longolongo Hussein, Mugabo and David.
Another testimony in his favour was provided by a Genocide survivor called Nshimiyimana Eugène who testified about his relationship with the late Rutare Pierre and his wife Ndoli Alphonsine during the Genocide and how he and Alphonsine Ndoli were planning to thank Amuri for the kindness he showed them during the Genocide. Muhoza Gacaca Court of Appeal reviewed all the testimonies in his favour and against him and decided that he played no role in the death of the late Rutare and cleared him of all charges.
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This judgment was disappointing to the plaintiffs including Mugorewicyeza Virginie Nyiramirambi, her son called Magorane and Gasasira Sadamu such that they even made threats against the judges of the Court. After the hearing was closed, the Court sentenced Mugorewicyeza Nyiramirambi Virginie to 3 months in prison, Gasasira Sadamu to 6 months in prison and Magorane to 3 months in prison in accordance with article 30 of the law governing Gacaca Courts.
The hearing was mostly controversial due to the misconduct demonstrated by the plaintiffs mentioned above who threatened the members of the Court to force them to sentence the accused.
2. Case files that were transferred by Gacaca Courts
Some of the case-files instructed and compiled by the Gacaca Courts were later transferred to Ordinary and Military Courts in accordance with the provisions of Organic Law no 16/2004 of the 19/06/2004 as amended and completed. However, the Gacaca Courts of the Cell of were still responsible for data collection relating to every suspect , compiling a case file, classifying it in the appropriate category and submitting it to competent Courts. Most people were under the impression that all case files that were compiled by Gacaca Courts shall be tried by Gacaca Courts which is not the case according to the law mentioned above.
The case file of Sebushumba Edouard (Gicumbi District)
Senator Sebushumba is suspected of playing a role in the hunting and capture of the so called “Inkotanyi spies” some of whom were killed, of holding Prefecture level security meetings which were known as “the screening committee”. This committee was in charge of screening people who had been captured. Some were released to go free while others remained incarcerated and still others were killed, of persecuting some people for their ethnicity including some who were killed such as the late Nkundabusheke. He was suspected of having committed these crimes at Giti Commune in Byumba Prefecture now known as Gicumbi District.
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He is accused of having committed these crimes in 1991 and 1992. Mr Sebushumba Edouard in collusion with about 21 others including the acting Bourgmestre called Muhire Aloys and Military officers such as Col. Nshizirungu, Mugaragu and others. His case file was submitted to the Public Prosecution Authority to be tried by competent Ordinary Courts because Mr. Sebushumba Edouard was acting in collusion with the Prefecture level leaders mentioned above, and therefore his case was out of Gacaca Courts jurisdiction in accordance with article 51 and 52 of Organic Law no 16/2004 of the 19/06/2004 mentioned above.
The case of RUCAGU Boniface (Burera District)
Mr Rucagu Boniface was suspected of having participated in the killings that took place at the former Nyamugali Commune in Ruhengeri Prefecture now known as Nemba Sector in Burera District. The crimes he is accused of include providing his vehicle to transport interahamwe to kill people and destroy property. His case file was compiled and submitted to the Pubic Prosecution Authority to be tried by Ordinary competent court because the alleged charges place him in the first category, point 2 (National level leaders who committed crimes of Genocide or incited people to commit Genocide). Mr Rucagu was a parliamentarian at the time the crimes were committed.
The case file of General GATSINZI Marcel (Huye District and Nyarugenge District)
General Gatsinzi Marcel was suspected of playing a role in the killings that took place in Butare where he was the head of ESO Butare (a Cadet Academy) and was also the Head of the Armed Forces when the Genocide began. He is accused of turning a blind eye when his cadets at ESO killed people in Butare and of being the commanding officer of the Army during the Genocide and do nothing to stop his soldiers from committing crimes. His case file was compiled and submitted to the Military Tribunal because it was beyond the jurisdiction of Gacaca Courts since he was in the first category, section 2 (national level leaders).
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The case file of NZIRASANAHO Anastase (Nyarugenge District and Gakenke District)
Senator Nzirasanaho Anastase is suspected of participating in Genocide crimes and other crimes against humanity while he was the head of the executive committee of the PSD political party in Ruhengeri Prefecture. Regarding charges brought against him during the data collection period, he is suspected of inciting people to committ genocide in Gakenke District where he distributed firearms to the staff of ASEDI Mataba for which he was the assistant legal representative in collusion with Mr. Neretsabagabo Fabien also known as Neretse who was the legal representative of the institution.
Those firearms were used to kill Tutsi in Mataba Sector according to the testimony of Mr. Munyarukiko Amon also known as Shabani currently emprosonned in Ruhengeri Prison. In Nyarugenge District, he was accused of participating in the killing of Dr Gafaranga Théoneste. Since he was being accused of participating in crimes of Genocide while he was a member of the executive committee of the PSD political party at Prefecture level, his case file was classified in the first category, point 2. In accordance with article 2 of Organic Law no 16/2004 governing Gacaca Courts; his case file was submitted to the Public Prosecution Authority to be tried by competent ordinary Courts.
The case file of KANZIGA Agatha (Nyarugenge District)
Ms Agatha Kanziga was accused of planning and organizing Genocide and other crimes against humanity. These crimes classify her case in the first category, section 1. In accordance with article 2 of the Organic Law mentioned above her case file was submitted to the Prosecutor’s office because it was not within the jurisdiction of Gacaca Courts.
The case file of Father Guy THEUNIS (Nyarugenge District)
Father Guy Theunis is a Belgian National who lived in Rwanda from 1970 to 1994; he used to write articles for a newspaper known as le Dialogue and was accused of participating in Genocide crimes including inciting people to committ Genocide through his articles. His case file was submitted to the Public Prosecution Authority to be tried by competent Ordinary Courts because it was compiled in 2006 before the Gacaca Courts were granted the jurisdiction over
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cases of first category. Gacaca Courts is competent to try some of the cases of first category crimes including the incitation to committ Genocide in accordance with the amendment of the 19/05/2008 of Organic Law no 16/2004 governing Gacaca Courts.
The case of Colonel BIZIMANA (Rusizi District)
Col Bizimana is a Burundi national suspected of participating in Genocide crimes at Bugarama Sector, Rusizi District. His case file was submitted to the Public Prosection Authority to be tried in a Court of competent jurisdiction because he was accused of crimes of first category, section 2 in accordance with article 51 of the Organic Law mentioned above.
The case file of NDAYIZEYE Domicien (Nyarugenge District)
Mr Ndayizeye Domicien is a Burundi national who had been living at the Mumena Cell of Nyamirambo Sector in Nyarugenge District from 1982 to 1994. He was a mechanic at N.A.H.V. He was accused of participating in Genocide crimes by Mr. Niyibizi Eric who was the Coordinator of the Mumena Cell of Nyamirambo Sector where he himself resided at the time. The witness mentioned above and other witnesses who were living near Ndayizeye accused him of the following: - Ethnically discriminatory language (he is quoted to have said running over a Tutsi with a car is not an offense) ; - At his house, meetings were held to plan killings of Tutsi in Bigogwe and in Bugesera between 1991 and 1992 ; - Inciting the interahamwe killers to commit Genocide by supplying them with weapons in collusion with other Burundi nationals who lived in Mumena through the MRND Political Party. Weapons used in the killings included machetes; guns and others were stored at his house. - Training some of the Interahamwe militia in the use firearms; - Manning a roadblock at Mumena (also known as Barundi) and going on raids that hunted Tutsi;
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- Attending meetings aimed at planning and carrying out crimes Genocide in Nyamirambo, for example the meeting that was held at St André School in Nyamirambo chaired by the Sector Coordinator of Nyamirambo Sector Mr Sezibera on 08/04/1994 which was also attended by other Burundi nationals who were supporting the killings; During the data collection that was conducted by the local authorities Mr Ndayizeye Domicien was classified among genocide leaders in Mumena Cell.
Witnesses who provided this information were his neighbours: Mukandengo Athanasie, Ufiteyezu Godillot, Niyibizi Amina, Ngabituje Aboubacar, Rwagitinywa Berchmans, Habimana Vianney who was the Head of Mumena Cell at the time and is now imprisoned inKigali Central Prison for crimes of Genocide and Mr Niyibizi Eric who was the Mumena Cell Coordinator who gathered the information.
Further information that was gathered indicated that Ndayizeye Domicien has a brother called Ndayizeye Gilbert who is serving his sentence in Karubanda Prison in the Southern Province convicted of Genocide crimes in Butare who also lived at Mumena. In the aftermath of Genocide Ndayizeye fled the country along with other Burundi nationals Niyitegeka Dominique, Laurent, Giterampongo and others. They are all alive and some are even Presidential advisors in Burundi.
All this information that was gathered about him was submitted to the Public Prosecution Authority for follow up by the National Service of Gacaca Courts.
3. Suspected individuals for whom no case files were compiled
The Gacaca Court hearings relating to Genocide crimes were preceded by a data collection phase . All citizens were invited to provide any information they have, may have seen or heard about crimes committed during the genocide. The Cell Gacaca Courts were responsible for compiling all the information received before sorting it to make a list of suspects and classify them in relevant categories. All the information collected was recorded but not all of it related to Genocide. Only individuals against whom there were serious grounds proving their participation in Genocide were placed on this list of suspects.
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URAYENEZA Gerard (Ruhango District) Mr. Urayeneza Gerard was suspected of participating in the killing of Church Pastors of Gitwe in Bweramana Sector, Ruhango District. However the Gacaca Court received no further evidence regarding this alleged participation in this crime.
There were other individuals who were accused and tried for the killing of these Pastors at Gitwe in Gacaca Courts. With regards to Mr Urayeneza Gerard, the National Service of Gacaca Courts advised anyone who might come up with tangible evidence implicating him in Genocide to submit them to the Public Prosecution authority since Genocide does not have time limits.
General GATSINZI Marcel (Nyabihu District)
General Gatsinzi Marcel was suspected of participating in the killing of an unknown individual in Jenda Sector in Nyabihu District. He was accused of ordering the killing of an unknown individual who was captured at the roadblock at Kabatezi in Jenda; those manning the roadblock immediately killed the individual. This information was received during the data collection phase conducted by the Gacaca Court of Kabatezi Cell. General Gatsinzi Marcel was summoned to the data collection public session and when the witness saw him and stated that General Gatsinzi Marcel was not the one he intended to accuse because he had no resemblance to the perpetrator, he stated that the soldier he was accusing is actually called Mutsinzi Marcel who was the commanding officer of the soldiers at Mukamira during the Genocide. For this reason, there was no case file instructed for General Gatsinzi Marcel because it was a case of mistaken identity.
KAMANZI Stanislas (Gatsibo District)
Mr Kamanzi Stanislas was suspected of participating in the killing of an Inkotanyi soldier who was killed at the Commune office of Gituza (now known as Kabarore Sector, Gatsibo District). The information provided by witnesses stated that in 1990 when Mr Kamanzi Stanislas was the Deputy Burgomaster of Gituza Commune, the residents of the area captured a person they considered to be Inkotanyi soldier and brought him to the Commune where he was shot dead by
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the Communal Police. The National Service of Gacaca Courts reviewed this case in collaboration with the Inyangamugayo judges of the Gacaca Court of Marimba Cell that had compiled the case file and it was found that the information provided by the witnesses actually points towards Col. Rwendeye who was the commanding officer of the soldiers in that Commune of issuing the order to the Police to kill the victim. The information also indicates that Mr Kamanzi, who was the Burgomaster at that time, did nothing to stop the killing.
Having examined the nature of the crime, the Court decided not to try Mr Kamanzi Stanislas because the crime is not under the jurisdiction of Gacaca Courts.
HARERIMANA Mussa Fazil (Nyarugenge District)
Mr. Harerimana Mussa Fazil was accused of persecuting Mr Karera Ally in Saudi Arabia where they were students. He was also accused of joining a militia group known as FFU (Fanya Fujo Uone).
The information was presented to the Gacaca Court of Gabiro Cell, Nyarugenge Sector in Nyarugenge District. After receiving this information the Court found that the group Fanya Fujo Uone was an Islamic group that comprised various nationalities with the mission to effect changes in the Islam religion and that the group had nothing to do with the Genocide mission. The Court also found that the conflict between Mr. Mussa Fazil and Mr. Karera Ally was not based on ethnicity; and therefore, the Court decided to clear Mr. Mussa Fazil Harerimana of all Genocide charges.
Section 4: Some of the outstanding values highlighted during the Gacaca Courts process
The implementation of the Gacaca Courts system demonstrated the courage of Rwandans, their will to rebuild their nation and their collective capacity to find solutions to their problems. Looking back at the situation in Rwanda in the aftermath of the Genocide, everybody was wondering whether the nation would ever come together again, especially whether it would be able to bring to justice the overwhelming number of Genocide suspects. In comparison with the
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current situation following tremendous progress achieved by the involvement of Rwandan people, there is no doubt that our country is moving towards a brighter future.
There is evidence worth remembering, of positive values that became manifest in the course of implementing the Gacaca program, such as upholding the spirit of hope and confidence to build a brighter future, trying all Genocide cases within a short time, upholding human rights, supporting National unity and reconciliation, building the Nation through community work to replace imprisonment, accepting guilt and seeking forgiveness, having the courage to hide those were being hunted during the Genocide, the courage of survivors to forgive those who committed inhuman crimes against them and so many similar acts of selflessness.
1. Self-confidence and hope
Although there were different propositions, as to how solutions for the problem of rendering justice for the crime of Genocide could be found, none of them seemed to be adequate. The Government of Rwanda decided that the solution be provided by Rwandan people. The decision of Rwandans to resolve the issue of Genocide cases through Gacaca Courts process is absolutely a sign of hope and confidence in their capacity to solve their own problems. They realised that no one should to solve their problems on their account, and that they had to be on the frontline of any attempts to resolve issues concerning them and had to rely on themselves because, as their saying goes, “help from neighbours never comes in the rain, it comes after”.
Although in 1994 the United Nations had put in place an International Criminal Tribunal for Rwanda to prosecute those suspected of having perpetrated the crime of Genocide and other crimes against humanity, Rwandans recognised that they had to take ownership of this problem before seeking help from others. If Rwandans had let things stay as they were, hoping that others would come and solve their problems, they would still be regretting today. The international Criminal Tribunal for Rwanda is expected to close in 2014, yet, in the 17 years if its existence it has not even tried 100 cases, whereas the number of Genocide suspects at large or awaiting trial was over a million! This shows clearly that the choice of Rwandans was so much more important than hoping and waiting for others who could eventually solve their problems. Experience over
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these years has shown them that solutions to their own problems lie within and among themselves.
No one else can feel the weight of Genocide consequences except those who have suffered it. As the saying goes, “the thorn in someone else’s flesh is not so painful to extract” (Agahwa kari ku wundi karahandurika). It is difficult to make someone who did not directly witness acts of Genocide understand fully its pain. Because such a person heard rather than saw the inhuman horrors of the Genocide, he or she might underestimate and interpret them as mere historical events and even attempt to defend and protect its perpetrators or fail to understand the real extent and impact of their crimes85.
It was difficult enough for Rwandans to keep up hope of survival in the aftermath of the Genocide that having had the confidence to solve huge problems such trying Genocide cases is another sign of their outstanding courage. This confidence and hope is the basis for development activities and plans towards a brighter future for Rwanda.
2. Trying a huge number of Genocide suspects within reasonable time
Gacaca Courts were able to try almost two million (2,000,000) cases of Genocide within a short time (trials began on 10/03/2005 in pilot Sectors). This is an irrefutable evidence of the collective will and ability of Rwandans to overcome huge challenges of their country and work for its faster development. The achievements of Gacaca Courts are exceptionally greater than to those of any other justice system that investigated and tried Genocide cases either in Rwanda or elsewhere such as at the International Criminal Tribunal for Rwanda.
For Rwandans to have been able to overcome such a big challenge is one of the achievements they should be proud of. Genocide had severely damaged the image of Rwandans as well as the image of the country among nations. In committing Genocide led by bad leadership, Rwandans
85 It is difficult, for example, to understand how a person like Col BAGASORA Théoneste who was a key planner of the genocide was found guilty of other crimes, except that of having had any role in the planning of the genocide!
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lost all sense of human values. . On the other hand, Rwandans on their own stood and stopped Genocide and are more than ever committed to carry on with the rehabilitation and development of their country under good leadership. The commitment to value themselves is among their motivation for all these achievement including the solution to the issue of Genocide cases. Although the country had limited resources to deal with the recovery from Genocide, the resolve of its people made all the achievements possible, thus proving true the saying that where there is a will there is a way.
3. Lessons learnt from Gacaca on human rights
Bringing to justice all Genocide suspects from the instigators to the implementers through Gacaca Courts was the only suitable way to leave a lesson of respecting human rights to all Rwandans of all layers. This also means that whoever had committed any act that violated human rights during the Genocide had to be held accountable for it. Some of the regular citizen on trial often argued that they should be exonerated of what they did because they obeyed their leaders who had instructed them to do so. This argument was found baseless because, though their leaders sensitized them to commit crimes there are people who did not follow that call, people had to use their reasoning before engaging into criminal enterprise. Furthermore, criminal responsibility is personal. Their exoneration would be a contribution to the culture of impunity which harmed our society for decades. The reason they were arguing like this is because this culture of impunity had become prevalent in Rwanda for a long time, whereby some people could violate the human rights of others to the extent of killing them with no fear of being brought to justice.
Prosecution of those Genocide suspects in Gacaca Courts made them realise that what they did was wrong and punishable by the law and dissuaded them and those with similar tendencies from repeating the same ever again. For example in an interview some prisoners convicted of Genocide who were doing community work at the planned site for the Gasabo District head office in Bumbogo Sector. They flatly refused to follow the instructions of the site supervisor to cut down the banana plantation on the site. When asked why they had disobeyed, they replied that no one, not even a leader of any kind, could ever again convince them to do what they
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believed was wrong and that their punishment had taught them that such acts always carry painful consequences. They feared that if they cut down the bananas, they would later have to answer for their act. Therefore, prosecution of all Genocide suspects in spite of their overwhelming numbers made all Rwandans understand better that each one is individually answerable for any crime he or she would commit, whether alone or in complicity with others.
There was another lesson for the leaders who committed Genocide who were tried before Gacaca Courts indiscriminately with those they had led, as well as for the general public at the hearings: that no one is above the law, that all are truly equal before the law. This is no doubt a lesson for those in positions of leadership today, that they must carry out their responsibilities in the right way subject that any abuse of powers will be punished according to the law.
As for those who were targeted in Genocide and who were denied all human rights including the right to life and were being hunted like wild animals, when they see all suspects brought to justice and their hunters punished, they regain the sense of human value and dignity as full citizens in their country where they had been treated worse than foreign enemies.
4. Patriotism
In the implementation of Gacaca Courts process, there some patriotic acts which demonstrated a deep-rooted love of Rwandans for their country. We can mention, for example, the outstanding dedication of Inyangamugayo judges and the commendable zeal of LDF (Local Defence Forces) in the activities of Gacaca Courts. - Dedication of Inyangamugayo Judges Our country is fully grateful for the work done by Inyangamugayo judges and their dedicated patriotism with which they carried out their responsibilities.Inyangamugayo judges are people who had other different positions that were earning them a livelihood, but they sacrificed some of their day to day business to serve their country without expecting any wage. They worked in all weather, come rain or sunshine, often with hunger and thirst, frequently travelling far and near (quite often on foot), hearing cases on consecutive days every week whereas they were
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required to do so only one day a week, and so on. They were motivated by love of their country and consideration that everything they did was for the benefit of all Rwandans as well as for their children who would inherit a country without internal conflicts.
It is this spirit of patriotism that drove even senior citizens, some with disabilities or even blind, to participate tirelessly in Gacaca Courts as Inyangamugayo judges, and show the young how traditional Gacaca worked. For example a83-year-old man by the name of Nzigiyimana Léonard (born in 1929) from Kagano Sector in Nyamasheke District participated in Gacaca Courts Process as an Inyangamugayo judge of the Gacaca Court of Gasayo Cell until the end of the process. Another example is Mr Mustapha Rutayisire who is blind and acted as an Inyangamugayo judge in the Kigarama Gacaca Court of Appeal86.
It is this spirit of patriotism that made Inyangamugayo judges have the courage to continue their work in the face of threats and sometimes at the risk of their lives. Some actually lost their lives because of the work they were doing. For example, Mr Rutayisire Paul was murdered because he was an Inyangamugayo judge in the Gacaca Court of Karama Sector in Huye District, Southern Province. Such life-threatening risks were run not only by Inyangamugayo judges, but also by the staff of the National Service of Gacaca Courts.
- Zeal of LDF (Local Defence Forces)
In general, security organs at all levels did their work commendably during Gacaca Courts process. They were charged mainly with maintaining security during Gacaca Courts hearings and judgements, protection of materials and documents, the security of Inyangamugayo judges and the protection of witnesses. They fulfilled their responsibilities in an exemplary manner.
86 Article 11 of Organic Law no 16/2004 16/2004 of 19 June 2004 governing the organisation, competence and functioning of Gacaca Courts accepts that anyone recognised in the community as a person of integrity can be elected to the bench of a Gacaca court even if s/he cannot read or write, with the provision that s/he cannot be a member of the Executive Committee of the Gacaca court.
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LDF (Local Defence Forces) were among these organs. These are people who should be given special thanks because of the dedication they showed and the sacrifices they made during the Gacaca Courts process. Their services were stretched to the limit in 2007, when Gacaca Court trials were at their highest speed throughout the country because of a great number of cases, yet they never faltered. They were on the spot working at each and every Gacaca hearing throughout the country. At some points they were often called upon to implement Gacaca Court decisions by arresting Genocide suspects and hand them over to temporary detention authorities or bring them to Court. The implementation of Gacaca Courts decisions often required walking long distances on foot accompanying prisoners to ”transit centres” or taking suspects to the nearest Police station which was often miles away.
They would be required to accompany the suspects back and forth between the Police station and the Gacaca Courts for every hearing of their case until the end of the trial and execution of the judgement. This work was carried out from the beginning to the end of the Gacaca Courts process. Because of the great number of trials taking place at the same time throughout the country, it was nearly impossible to find a vehicle for every Gacaca Court of the Sector or every Court of Appeal at that level, to transport suspects to Court or prisoners in transit centers. It was in these difficult times that LDF came to the rescue and did all the work required. The only relief they had was that those they accompanied did not present any difficulties on the way. These were people who had been tried and convicted by their own neighbours in fully transparent hearing before Gacaca Court. The verdict had been made by their own community and they were ready to serve their punishment. This is why very few of them ever attempted to escape.
6. The courage to hide those who were being hunted during the Genocide
As we mentioned above, given the objective of the Genocide planners to exterminate the Tutsi once and for all and given the enormous resources and power used to attain that objective, it was not easy to do anything that went against that plan. Genocide planners and their supporters at all levels of civilian and military leadership had taught and convinced their followers to hate their neighbours, preaching that every Tutsi, from the oldest to the youngest, is an enemy of the country, a traitor who should be hunted down and killed. These hate messages were broadcasted
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over the radio and published in print media to such an extent that it became known to every Rwandan that whoever should give refuge or hide a Tutsi will be treated like one, as he or she will be a traitor by giving shelter to the enemy. This preaching parodied God’s commandments in the Bible and was published as “The Hutu 10 Commandments” in Kangura newspaper in its issue n° 6 of December 1990. In general, the aim of these commandments was to inflame hatred between Hutu and Tutsi, urging Hutu to carry out atrocities against Tutsi.
However, evidence gathered in preparation for Gacaca Court trials and testimonies given during the trials showed that there were some Rwandans ready to risk their lives challenging the above mentioned hatred bible. Not only did they refuse to participate in the Genocide, but they also came to the rescue of their neighbours, hid them, fed them and gave them every kind of assistance that made some survive.
These courageous people knew well that if they were found out, they risked losing their lives and even the lives of their family members. Here are some examples of Rwandans who carried this level of courage: 1. Karuhimbi Sura an old woman in Ruhango Sector of Ruhango District in Southern Province hid more than 80 hunted people in her homestead, others in the field covered with harvest leftovers. She even taught her grandchild to shake a ritual instrument whose sound indicated there were evil spirits inside her hut so that killers feared to enter her hut and those she was hiding survived! 2. In Rwezamenyo Sector of Nyarugenge District in Kigali City Gisimba Damas was able to hide about 400 people in his orphanage called Centre Mémorial Gisimba. Among the people he saved during the Genocide are the families of former Senator Mugesera Antoine, of Justice Piyo Mugabo, and many others. 3. One Kamegeli Augustin became famous for his bravery in Bwerankori village of Gihombo Sector in Nyamasheke District, Western Province. This 84-year-old man decided to baptise himself on the shores of Lake Kivu because a Hutu Pastor had refused to baptise him for having given shelter to Tutsi fugitives during the Genocide. The old man, Kamegeli, told The New Times newspaper thus: “I pleaded with the Pastor to baptise me, but he refused saying that I had betrayed my own Hutu
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tribe.” Kamegeli saved more than 70 persons using his canoe in several risky trips to take them across the lake to Idjwi Island where they were safe. He would then go back to bring them food. During the time of data collection in Gacaca Courts in his home area, those he exposed tried in vain to threaten him into silence. 4. Mario Faricon, an Italian Priest who was the Roman Catholic Parish Priest in Muhura saved about 350 Tutsi who came to seek refuge in his Parish. They were from Muhura Commune and several neighbouring communes such as Murambi, Giti, Rutare and Gikoro. During the time of data collection, those who survived in his Parish gave testimonies of his role in saving them repeatedly from different hordes of killers. He would take a stand before Interahamwe militia men who came to exterminate those he was hiding, denying that there were any, preaching that those who “kill by the sword shall die by the sword.” Another time, he went forth to meet a huge gang of killers sent by the infamous Gatete of Murambi Commune and told them to run for their lives: Inkotanyi soldiers are already in Muhura and are going to finish you off“and off they ran! At a ceremony to mark the end of the 100-day Genocide Commemoration on 19/07/2011 in Nyanza of Kicukiro District, he was awarded a medal of appreciation by Ibuka Foundation. This is what he simply said: “I want to go on living in Rwanda for the rest of my life”87.
In a survey carried out in 2011 by the Genocide survivors’ organisation, Ibuka, to identify people who had a role in hiding those who were being hunted, 215 persons were identified in 10 Districts. This number was certainly set to increase because when we consulted the the survey, it had only covered 10 Districts of the country. These people who saved the lives of those who were being hunted during the Genocide have been given the name of INDAKEMWA.
In a ceremony to acclaim their courage, it became apparent that many people who were not being hunted refused to separate themselves from their Tutsi neighbours and were killed by Interahamwe and other killers. Among such people, we can mention Father Jean Bosco
87Read at www.izuba.org.rw/index.php?issue=266article=8014 on 08/03/2012.
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Munyaneza who was murdered with his flock in Mukarange Parish of Kayonza District. When the killers came to the Parish to exterminate those who were hiding there, he challenged them and said: “if you want to spare my life, spare theirs too, but if you want to kill them, kill me with them“88. We can also cite the bravery of the late Munyakayanza Léopold from Nyarubuye village, of Musasa Sector in Rutsiro District, Western Province. He helped many people to escape by ferrying them across Lake Kivu to Idjwi Island. On one of his return journeys, he was ambushed and killed with his brother.
All those and others we have not mentioned in this book were commended by H.E. President Paul Kagame, IBUKA as well as by some international organisations. From the time Genocide was stopped, survivors have expressed their gratitude in various ways to those who risked their own lives to save them from the killers.
5. The courage of survivors to forgive those who committed Genocide and inhuman crimes against them
If we consider the nature of Genocide crimes and the inhuman cruelty with which they were committed and especially their consequences on survivors who endured them directly, it is not easy to ask them to forgive the perpetrators of these crimes. In this regard, Gacaca courts were truly messengers of reconciliatory justice. They brought the perpetrators of Genocide face to face with their surviving victims and encouraged dialogue between them, to the extent that the criminal would step forward fully confesses his crimes and ask for forgiveness from his victim(s) and the survivor had the courage to grant it.
In a brief interview we had with Genocide survivors from Nyanza and Ruhango Districts about the issue of forgiving those who had wiped out their families, one of them said: “We have decided to break with the legacy of hatred and to move forward on the path of reconciliation, and forgive those who ask for forgiveness.“ Another one said: “if a person who killed your beloved ones looks back at what he or she did fully recognises and repents the crimes he or she
88 Found at www.hirondellenews.com/content/view/14043/1194 on 08/03/2012.
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committed, then comes freely to you asking for forgiveness you would not refuse to grant it. Refusal would not only be hindering the effort of unity and reconciliation but would also be like creating obstacles on the path of a lost human being who seeks to regain his humanity“. Yet another one said: “we have forgiven people who repentantly confessed their crimes and sincerely asked for our forgiveness; I can even confirm that their confession contributed greatly to finding out what happened during Genocide because those who remained in denial twisted the information or claimed to know nothing“89.
It is a true sign of redemption for a person who took part in the perpetration of inhuman crime like Genocide to rethink and convict himself without anyone accusing him, and approaching the surviving victims to ask for forgiveness. It is also a sign that he or she is ready to live with others in peace. This spirit of asking for forgiveness and granting it is the sure path towards peace and reconciliation between families.
Genocide survivors have had the courage to forgive those who wiped out their families. The country will forever be indebted to them for their courage is extraordinary because human nature normally dictates that they should act according to the saying: “an eye for an eye, a tooth for a tooth“ 5. Building the nation through community service as an alternative of imprisonment
Rwandans who took part in the Genocide devastated the country and destroyed its development infrastructure that is how the Government designed a strategy to give them a role in reconstruction. In this regard, it was decided that a certain category of prisoners should have their terms commuted to community service of national interest. This work involves Genocide convicts of the second category who pleaded guilty and confessed their role in Genocide. Their community work includes building schools, construction of radical terraces to fight soil erosion, production of stones for road construction, building houses for the homeless, etc. This program by which those who destroyed the country are given an opportunity to rebuild the nation
89 This is some of the information from genocide survivors from Busasamana Sector in Nyanza District and Ruhango Sector in Ruhango Didtrict given on 11/07/2011to the representative of the National Service of Gacaca Courts on the issue of forgiving thsose who had massacred their families.
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is an original Rwandan solution. The prisoners are engaged in productive work instead of being a burden to the nation for their maintenance in jail. The net worth of their work as of 09/11/2011 is estimated at RWF 42 billion90.
6. Support to national unity and reconciliation
One of the main objectives of Gacaca Courts was to strengthen unity and reconciliation among Rwandans. Unity and reconciliation is a path Rwandans have chosen after the Genocide against the Tutsi to lead them to peace and harmony. Gacaca Courts have made a great contribution in this journey because they established a way of healing some of the wounds left by the Genocide. Through Gacaca Courts, Genocide survivors were able to identify those who offended. One of the obstacles to unity and reconciliation was having Genocide perpetrators walking around free, without ever having them prosecuted for their crimes. This would strengthen the culture of impunity and make Genocide seem justified. Gacaca Courts helped to solve this problem. Those who participated in Genocide were identified through data collection, they were tried, those found guilty were punished, and the innocent set free.
This helped Rwandans to distinguish those who participated in Genocide from those who did not and prejudiced suspicion was removed. Suspicion in any society is a hindrance to unity and development because nothing can be achieved without people agreeing to work together (unity is strength).
Gacaca Courts helped Genocide survivors to know where the bodies of their beloved ones were thrown; they were found from various pits such as latrines and compost pits and they were given decent burial in various Genocide memorial sites. Here is what one of the Genocide survivors said on this point: “even if some bodies have not been found, we cannot fail to appreciate the contribution of Gacaca Courts in finding the bodies of our people who were dumped like rubbish which helped us to locate where they had been dumped, give them decent burial, be able to remember them and at least honouring them by putting flowers on their graves”91.
90 Information given by Mr Nabahire Anastase, the officer in charge of production at RCS in an interview held on 09/11/2011. 91 An interview we had with one of the genocide survivors from Southern Province, Huye District on 20/12/2011.
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Gacaca Courts created a platform for Rwandans to speak out on what they had experienced or witnessed and therefore alleviated some of the pain and wounds inflicted by the Genocide. Shortly after Genocide, before Gacaca Courts were set up, many people were silent, unable to reveal what they knew because there was no credible platform they could use; those who tried to speak were taken as rumourmongers at the best, or as people who expected benefits from making false accusations against their neighbours.
For Genocide survivors, this platform was a way for them to come out of isolation they faced resulting from Genocide violence because they were traumatised and ashamed of what had happened to them. Those who suffered rape or other dehumanising acts of violence were encouraged to overcome their fear and shame and gave witness to what had been done to them. This enabled them to realise that they should not the one to be afraid, but the perpetrators of those crimes should bear the shame. The platform provided them with sympathetic listeners who understood the horrors they had gone through and shared the burden of indignation they had been carrying alone. If there were no platform such as the one established by Gacaca Courts for expressing what they had gone through, they would stay traumatised by the pain concealed in their hearts.
On the other hand, some of people who committed Genocide carried anxiety in their hearts, running where no one was pursuing them, thinking that any day anywhere they could meet someone who know or had witnessed the atrocities they committed, and this made them live in isolation, scared of other people, behaving very cautiously. One of those who confessed and pleaded guilty to the crime of Genocide put it in these words: “I am grateful to the Government of National Unity for having set up Gacaca Courts because they helped me to tell the truth and relieve the burden on my conscience. Before that, I was restless all the time because my conscience kept accusing me. I would go to church for confession of my sins, but could only vaguely refer to them and go back home feeling nothing had changed and my conscience was unrelieved. When Gacaca came, I went forward and confessed clearly in public the evil deeds I committed and sincerely asked for forgiveness to those against whom the crimes had been committed. I was given the punishment of doing community services (TIG) instead of going to
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prison. Now I am free of the burden because I have been forgiven by those I offended and now we live together in harmony”92.
It is obvious, therefore, that providing a platform for those who committed atrocities during the Genocide and their surviving victims to talk openly about the burdens in their hearts made them free of those burdens and now they live together in harmony. This harmony and talking to each other and rebuilding of trust among Rwandan are a sign of peace and reconciliation.
It is also the foundation for development because it is only when people are united that they can work together and collectively respond to Government development programs and rebuild their country unburdened by discord and anxiety. Research carried out by the Centre for Conflict Management (CCM) of the National University of Rwanda has indicated that Gacaca Courts contributed at the level of 87.3% to objective of the national unity and reconciliation. These are, in summary, some of the praiseworthy results achieved through Gacaca Courts. There are so many others not included herein.
To wind up this chapter, explanations herein enclosed are in a summarised form but they are clear enough to satisfy those who seek to understand better the Gacaca Courts system and how it worked. These explanations were in response to some of the criticisms that people and organisations frequently put forward in their reports and other writings. Many of the criticisms leveled against Gacaca Courts often arose from insufficient understanding of the principles and procedures they followed, or comparing them with the administration of justice in Ordinary Courts. Each system has its own structure and particularities and comparing them would be wrong because the problems to be solved are very different in nature.
As for cases where some parties were not satisfied with the verdicts of the Courts, it is normal for the loosing parties and their supporters not to be happy with the verdicts. What is important is that a Court should base its decisions on law and principles of justice. It was also proved to be evident that disagreements on court decisions and judgements on such a case often came from individuals and organisations which were short sighted by one party to the case and not based on objective criteria.
92 An interview we had with one of those who confessed and pleaded guilty, on 15/10/2009 in Rutunga TIG camp, Gasabo District.
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Gacaca Courts should not be blamed for not having tried certain cases because a Court can only try cases within its jurisdiction. The law forbids any Court to try cases that are outside its jurisdiction; with in the competence of other Courts. The cases outside the jurisdiction of Gacaca were handed over to other competent Courts to try them.
It was extremely difficult to try Genocide cases in public because of the inhuman cruelty that characterised them. Even merely trying to give evidence of how they were committed would provoke traumatic reactions among the general public attending Court hearings, especially for the victims who had survived. It required Inyangamugayo judges to be observant and to conduct trials in such a way as to avoid raising prejudice or injuring any party, in order to serve the purposes of fair justice. The achievements of Gacaca Courts are many; those mentioned in this book are only a few examples.
In short, it is in this regard that the National Service of Gacaca Courts would like to recommend to other countries that have had problems similar to those Rwanda experienced; to be insired by the ways used for conflict resolution and peacebuilding.
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CONCLUSION
The establishment of Gacaca Courts in Rwanda appeared to some as almost undesirable for various reasons. First of all, some affirmed that it was impossible to try and punish such a big number of perpetrators of Genocide and other crimes against humanity, thinking that it was ideal to proclaim a general amnesty for them. Furthermore, people said that this process would be a source of insecurity for the population and, consequently lead to Genocide. Others considered the process to be so expensive at the time when the economic situation of Rwanda after Genocide was still unstable.
Despite of all the advanced reasons and many others that have not been mentioned, Rwandans, inspired by the spirit of patriotism, were committed basing on the National priorities. As a matter of fact, justice and National reconciliation ranked the highest priorities.
Apart from these challenges, most of Rwandans agree that rendering justice after Genocide is indispensable and consequently, the constraints linked to this mission could not question the necessity to restore social cohesion. Thus, after institutionalisation, the process started by a pilot phase. At the end of the promising experimentation phase, optimism on the Gacaca process prevailed among the majority of Rwandans. The reasons for this optimism were, among others, the active participation of the population, revelation of the truth, many testimonies, speeding up the pilot phase with a good number of rendered trials, the rising number of confessions, the smooth progress of hearings, etc. The success of the pilot phase put aside all hesitations and Gacaca Courts process was launched country-wide. The eminent achievements of Gacaca Courts, at the National level, are the result of the determination of Rwandans and their will to rebuild their country.
Gacaca Courts hold a great part in the history of Rwanda faced in 1994. They constitute therefore an unforgettable landmark in the history of Rwanda that will serve as guardrail and as a tool to fight against divisionism and Genocide ideology. Through Gacaca Courts, Rwandans proved the capacity to solve their own problems, to mend the social fabric, revealed the truth about the Genocide; plan prepared long-time ago and finally put in action by its perpetrators.
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The capacity of Gacaca Courts to speed up cases of Genocide allowed Rwandans to remedy the slowness of the legal proceedings. Gacaca Courts were used as one of the ways to eradicate the culture of impunity and a lesson to the respect of human rights, especially the right to life and equality of all Rwandans before the law. Gacaca Courts constitute finally, a way of re-invention of cultural values that had been ignored because of colonial inventions that sometimes did not fit the realities of the present. Gacaca Courts ended their activities successfully and Rwandans are proud of the giant step made.
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LANDMARK REFERENCE DATES OF THE PROSECUTION OF GENOCIDE CRIMES:
30/08/1996: Organic Law no 08/96 of 30/8/1996 organizing the prosecution of Genocide crimes and other crimes against humanity committed since the 1st October 1990. It established the specialized chambers within ordinary and military courts charged with trying genocide cases; O1/05/2000: Publication in the Official Gazette of the amendment of 18/04/2000 of the Fundamental Law of the Republic of Rwanda which modified the organization of the Supreme Court and established six Departments among which there was the Departement of Gacaca Courts charged with coordinating the activities of Gacaca Courts; 01/05/2000: Organic Law no 9/2000 which modified the organization and functioning of the Supreme Court and established six Departments among which there was the Department of Gacaca Courts charged with coordinating the activities of Gacaca Courts; 26/1/2001 : Organic Law n° 40/2000 governing creation of Gacaca Courts and organization of prosecution of crimes constituting the crime of Genocide or other crimes against Humanity establishing a Gacaca court at every administrative entity of the country (cell, sector, district/ town, province); 4-7/10/2001 : Elections of Judges Inyangamugayo; 18/6/2002 : Official launching of the Gacaca Courts activities in its pilot phase by His Excellence the President of the Republic; 9/6/2002 : Starting of activities of Gacaca Courts in the first 12 pilot sectors composed of 79 Gacaca Courts (1sector /District and town); 25/11/2002 : Extension of the collection of information in 672 Gacaca courts of the Cell and in other 106 sectors (one sector was chosen in each district/ town); 04/06/2003: The Constitution of the Republic of Rwanda of 04/06/2003 as amended to date, in its article 152 provides for the establishment of the National Servicve of Gacaca Courts; 28/04/2004: Law n° 08/2004 of 28 April 2004 on the establishment, the organisation, duties and functioning of the National Service in charge of the follow-up, supervision and
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coordination of the activities of Gacaca Courts that replaced the Department of Gacaca Courts that was in the Supreme Court; 19/6/2004 : Promulgation of the Organic Law n° 16/2004 repealing the organic law of 2001 mentioned above; 20/6/2004 : Reorganization of the Gacaca Courts and their organs; 24/6/2004: Official launching of activities of Gacaca Courts at the national level by His Excellence the President of the Republic of Rwanda; 8-12/2004 : Training of Inyangamugayo judges; 15/1/2005 : Beginning of data collection at the national level; 10/3/2005 : First trial in Gacaca Courts at the level of Pilot phase; 15/07/2006 : Beginning of trials at the national level; 27/06/2006: Organic Law n° 28/2006 modifying and complementing the organic law of 2004 governing Gacaca Courts; 01/03/2007: Organic Law n° 10/2007 modifying and complementing the organic law of 2004 governing Gacaca Courts as modified and complemented to date ; 19/05/2008: Organic Law n° 13/2008 2007 modifying and complementing the organic law of 2004 governing Gacaca Courts as modified and complemented to date ; 23/06/2008: Beginning of trials of Category one in Gacaca Courts; 23/10/2009: first closing ceremonies at sector level at JURU Sector of Bugesera District, Eastern Province; 5/8/2010 : Last closing ceremonies of Gacaca courts activities at sector level at KAGANO Sector Nyamasheke district; Western Province; 18/06/2012: Officicial closing ceremonies of Gacaca Courts activities at national level
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BIBLIOGRAPHY
I. Legal texts and regulations 1. The Constitution of the Republic of Rwanda of 04/06/2003 as amended to date, O.G.R.R Special no of 04/06/2003. 2. Amendment of 18/04/2000 of the Fundamental Law of the Republic of Rwanda, O.G no 9 of 01/05/2000. 3. Pacte International relatif aux droits civils et politiques conclu à New York le 16 Décembre 1966, www.admin.ch/ch/f/rs, consulté au 23/08/2011. 4. Organic Law n° 13/2008 of 19/05/2008 modifying and complementing Organic Law n° 16/2004 of 19/06/2004 establishing the organisation, jurisdiction 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 as modified and complemented to date, O.G.R.R n° 11 of 01/06/2008. 5. Organic Law no10/2007 of 01/03/2007 amending the Organic Law n° 16/2004 as modified and complemented to date, O.G.R.R no 5 of 01/03/2007. 6. Organic Law no 28/2006 of 27/06/2006 modifying and complementing the Organic Law n° 16/2004, O.G.R.R special no of 12/07/2006. 7. Organic Law no 29/2005 of 31/12/2005 determining the administrative entities of the Republic of Rwanda, O.G.R.R special n° of 23/12/2005. 8. Organic Law n° 16/2004 of 19/06/2004 establishing the organisation, jurisdiction 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, O.G.R.R special no of 19/06/2004. 9. Décret-Loi n° 27/77 du 18/08/1977 portant Code pénal du Rwanda, Journal Officiel de la République du Rwanda, 1978, n° 13 bis.1. Il a été modifié et complété par le Décret-loi 23/81 du 13/10/1981 J.O 1981, confirmé par la Loi n° 01/82 du 26/01/1982 J.O 1982 et par la Loi n° 08/1983 du 10/03/1963 J.O 1983.
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10. Law n° 08/2004 of 28 April 2004 on the establishment, the organisation, duties and functioning of the National Service in charge of the follow-up, supervision and coordination of the activities of Gacaca Courts, O.G.R.R n° 9 of 01/05/2004. 11. Organic Law n˚ 40/2000 of 26/01/2001, governing the creation of Gacaca Courts and organizing the prosecution of Genocide crimes and other crimes against humanity committed between the 1st October 1990 and the 31st December 1994 , O.G.R.R of 15th March 2001. 12. Organic Law no 23/2000 of 11/10/2000 modifying and completing the Law of 23rd February 1963 related to the organisation of the Supreme Court, O.G no 7 of 01/04/2001. 13. Organic Law no 22/2000 of 11/10/2000 modifying and completing the Decree-law n˚ 09/80 of 7th July 1980 governing the judicial organisation and jurisdiction, O.G no 7 of 01/04/2001. 14. Organic Law no 08/96 of 30/8/1996 organizing the prosecution of Genocide crimes and other crimes against humanity committed since the 1st October 1990, O.G. no 17, 1996. 15. Law n° 09/2007 of 16/02/2007 on the attributions, organisation and functioning of the national commission for the fight against genocide, O.G n° special, 2007. 16. Law n° 13/2004 of 17/5/2004 relating to the Code of Criminal Procedure, O.G special nº of 30/07/2004. 17. Law no 33/2009 relating to arms, OG no 52 bis du 28/12/2009. 18. Presidential Order no 12/01 establishing modalities for organizing elections of members of "Gacaca Jurisdictions" Organs, 2002. 19. URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza nº16/2008 yo ku wa 05/06/2008 y’Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca arebana n’imanza z’abaregwa ibyaha bya jenoside n’ibindi byaha byibasiye inyokomuntu byo mu rwego wa mbere, imanza za jenoside zizava mu nkiko zisanzwe n’iza Gisirikare no gusubiramo imanza mu Nkiko Gacaca, Kigali, 2008. 20. URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza nº15/2007 yo ku wa 01/06/2007 y’Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca arebana n’irangizwa ry’ibihanobihabwa umuntu wireze, akemera icyaha, akicuza agasaba imbabazi bikemerwa n’Urukiko Gacaca, Kigali, 2007.
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21. URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza no 14/2007 yo kuwa 30/03/2007 y’ Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca arebana no kuriha umutungo wononwe mu gihe cya jenoside n’ibindi byaha byibasiye inyokomuntu byakozwe hagati y’itariki ya mbere Ukwakira 1990 n’iya 31 Ukuboza 1994, Kigali, 2007. 22. URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza nº13/2007 yo ku wa 20/03/2007 y’Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca agamije gufasha Inkiko Gacaca gushyira mu bikorwa ibiteganywa n’Itegeko Ngenga no 10/2007 ryo ku wa 01/03/2007rihindura kandi ryuzuza Itegeko Ngenga n° 16/2004 ryo kuwa 19/6/2004 rigena imiterere, ububasha n’imikorere by’Inkiko Gacaca zishinzwe gukurikirana no gucira imanza abakoze ibyaha bya jenoside n’ibindi byaha byibasiye inyokomuntu byakozwe hagati y’itariki ya mbere Ukwakira 1990 n'iya 31 Ukuboza 1994 nk’uko ryahinduwe kandi ryujujwe kugeza ubu, Kigali, 2007. 23. URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza no 12/2007 yo kuwa 15/03/2007 y’ Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca arebana no gusubiramo imanza zaciwe n’Inkiko Gacaca, Kigali, 2007. 24. URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza n°11/07 yo ku wa 02/03/2007 y’Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca arebana n’ishyirwaho ry’inteko nyinshi mu Rukiko Gacaca n’imikoranire yazo, Kigali, 2007. 25. URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza n°10/06 yo ku wa 01/09/2006 y’Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca arebana n’ifata n’ifunga mu Nkiko Gacaca, Kigali, 2006. 26. URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza nº9/2006 yo ku wa 26/07/2006 y’Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca arebana no gusubiramo imanza zaciwe n’Inkiko zisanwe, Kigali, 2006. 27. URWEGO RW’IGIHUGU RUSHINZWE INKIKO GACACA, Amabwiriza n°08/06 yo ku wa 25/07/2006 y’Umunyamabanga Nshingwabikorwa w’Urwego rw’Igihugu rushinzwe Inkiko Gacaca arebana n’iyuzuzwa ry’ifishi y‘uwakatiwe n’Urukiko Gacaca igihano cy’igifungo kirimo gukora igihano nsimburagifungo cy’imirimo ifitiye Igihugu akamaro, Kigali, 2006.
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II. BOOKS 1. Bosman Hester, Gacaca Courts in post-conflict Rwanda, The quest for reconciliation and justice, University of Amsterdam, 2007. 2. D. Haveman & H. Roelof, Merging penal systems, some extraordinary examples of the Rwandan and supranational practice, Amsterdam. 3. L. Merven, Conspiracy to murder-the Rwandan genocide, London, 2004. 4. LIPRODHOR, CDIPG, « Quatre ans de procès de Génocide: Quelles bases pour les Juridictions Gacaca, 2001. 5. Ministère de la Justice, Juridictions Gacaca dans les procès de Génocide et des massacres qui ont eu lieu au Rwanda du 1er octobre 1990 au 31 décembre 1994, Kigali, 1999. 6. NSGC, Procedure of collection of necessary data in Gacaca Courts, 2005. 7. NSGC, Trials procedure in Gacaca Courts, 2005. 8. URUKIKO RW’IKIRENGA, UMUTWE USHINZWE INKIKO GACACA, Gahunda y’Imirimo y’Urukiko Gacaca rw’Akagari (I), Kigali, 2002.
III. REPORTS
1. ASF, Observation des Juridictions Gacaca, Rapport synthèse trimestriel, Kigali, 2010. 2. ICG, Cinq ans après le génocide au Rwanda, la justice en question, Rapport, n˚ 1, 7 avril 1999. 3. L’Office de l’Ombudsman, Liste de personnes reconnues coupables de corruption, (tous les trimestres), Kigali, 2010. 4. NSGC, Report on activities of Gacaca Courts in the pilot phase, Kigali, 2005. 5. Rapport de Human Rights Watch, Justice compromised, the legacy of Rwanda’s community-based Gacaca Courts, May 2011. 6. Rapport de la Cour Suprême, Les personnes reconnues coupables de corruption, 2009. 7. Repubulika y’u Rwanda, Perezidansi ya Repubulika, Raporo y’inama nyungurana bitekerezo yabereye muri Perezidansi ya Repubulika guhera mu kwezi kwa Gicurasi 1998 kugeza mu kwa Werurwe 1999 (Inyandiko irambuye), Kigali, 1999.
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8. NSGC, Quarterly report, Kigali, 2006. 9. NSGC, Report on activities of Gacaca Courts in the pilot phase, Kigali, 2005. 10. NSGC and BTC, Report of survey on the improvement of the welfare of “Inyangamugayo”, Kigali, 2005. 11. NSGC, Annual report, Kigali, 2004.
IV. ELECTRONIC REFERENCE
1. Analyse de PRI sur les Juridictions Gacaca, www.penalreform.org, consulté le 15/03/2012. 2. GREGORY H. STANTON, Eight stages of Genocide, www.genocidewatch.org/images/8StagesBriefingpaper.pdf consulté le 26/08/2011. 3. NATIONS UNIES, Conseil de sécurité, RÉSOLUTION n◦ 955 du 8 novembre 1994, http://www.un.org/french/documents/view_doc.asp?symbol=S/RES/955(1994), page consultée le 15/08/2009.
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