Rwanda. How do you try the 'little killers'?
26 March 1996
28 May 2013
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4 November 2013
As many as a million people, mainly Tutsis but also many Hutus who opposed the genocide in Rwanda, were killed in their homes or massacred in churches, or cut down at road blocks.
What the survivors now want is justice. But justice is easier said than done in a country where professionals - and in particular judges and lawyers - were the first to be targeted, and the justice system along with other social institutions was destroyed.
The genocide started in April 1994. It ended after the victory three months later of the Tutsi-led Rwandan Patriotic Front. The genocidal regime and its national army, among two million refugees, were driven over the border into Zaire, Tanzania and Burundi. The country was left bereft of judges, magistrates, police and prison staff. For instance, only 12 prosecutors and 36 out of 360 criminal investigators remained.
Amid the capital Kigali's war-torn buildings, the High Court now stands in pristine condition, rehabilitated not by government money, but by the UK aid agency Christian Aid in one of its most unusual grants.
The agency's action served to encourage others, specifically governments, to restore the justice system. Christian Aid's Abiy Hailu explained: "Without justice there will be no end to the climate of impunity, no hope of a return to normality. Few of the innocent among the two million refugees who fled with the genocidal regime to Zaire and Tanzania will return voluntarily."
The achievement of the court is considerable, the task ahead monumental. Five judges, where once there were 24, have managed in the past year to try 1,000 cases. They face a backlog of 4,000 non-genocide cases, the number greatly swollen by custody and inheritance disputes resulting from the slaughter.
The backlog can only grow as Kigali's 18 community courts come back on stream and begin referring cases. There will also be a plethora of housing and other disputes when Hutu refugees do begin to return. Their homes have been occupied by genocide survivors whose houses were wrecked and returning long-term Tutsi refugees.
And in Kigali jail alone, 11,000 genocide suspects await trial, a number set to escalate rapidly if Zaire executes systematic repatriation.
"We are getting situations we have never had to deal with before and must change both law and practice," said Kigali court president Claudien Gatera, who survived the genocide himself by hiding in a forest for two weeks, living off rain water.
"For instance, inheritance is patrilineal. If a man dies and the children die - as has happened in many cases - the wife cannot inherit and the property goes to the man's family."
He adds: "The male line also always wants custody of any children, even when the mother is alive."
Since the genocide, Rwanda has introduced a community of property option and now handles such disputes in the spirit of the new law.
"We say the man and woman had a community of life and it should now be accepted that they had community of property as well," says Gatera.
"The way we deal with this problem now is that we bring three representatives each from the male and female side and we share out. Or if the wife is still alive, she will come and she will sit opposite her husband's family and again the court will decide. It's a very new case.
"In our culture, children belong to the male side, but we now look to the best interest of the child.
"We recently gave four orphans into the care of their mother's sister. The late husband's family was incapable of looking after them and wanted their inheritance. They were very angry with us and wrote to everyone, even the president, claiming 'These people are taking what belongs to us'. However, our judgment stood."
Such cases are overshadowed by those directly concerning the genocide.
Among considerations of how best to try the genocide cases - whether in special courts, or separate chambers within the established courts - and how many appeals to allow, the Ministry of Justice is wrestling with problems of where to draw the line on guilt and sentencing.
The current punishment for murder is death. But what of people who killed under the direct threat of being killed themselves, or who, in terror, revealed the hiding place of Tutsis?
Alternative punishments are being considered for looters and vandals who took advantage of the genocide, and possible community service and reparation are winning favour. "We are also considering reduced sentences for people who admit their guilt and assist in the justice process," says a senior Ministry of Justice spokesperson.
Property is another hot issue: those found guilty of genocide may be made to compensate those whose homes and property were damaged or lost.
The country is caught between the need to be realistic and the need to address the crime against humanity without trimming the justice process to a point where it is less than just.
International donors have been more forthcoming and progress is being made, particularly in training magistrates, police and court officials. Other courts are now coming back on line. But there are still fundamental shortages.
Six separate bits of paperwork are needed to hold someone in preventative detention. "For 11,000 people, we just don't have the paper," says Gatera. "To keep them in detention they must appear at regular intervals. We tried to keep up but realised with the numbers being detained we just could not do it and so abandoned it. The law on preventive detention must be changed."
The government plans to thin out the prison population by screening cases against the accused and abandoning those with no likelihood of success. But the repatriation of refugees could defeat the measure.
"If we had to arrest everyone who was forced to man a road block, we would need to try more than a million cases," says a prominent human rights activist. "If we try only the real ringleaders we are looking at perhaps 20,000."
The latter figure, though daunting, is unlikely to satisfy the survivors. "I am sick of talk of big and little killers," says one genocide widow.
"You may be a little killer, but you are still the one who killed my parents, my husband or my children. If you cannot be held responsible, then I can be a little killer too."
If the justice expectations of survivors are not met, there may be a real danger of revenge killing escalating, perpetuating the culture of impunity.
"We must be optimistic," says the Ministry of Justice spokesman. "There have been few cases of revenge so far despite the enormity of what occurred and we must hope that when people implicated in the genocide are seen to be tried it will defuse the situation."
Beyond the legacy of tragedy, beyond the danger that the country could again fall to extremists on either side, beyond the overwhelming nature of the reconstruction task, what is striking in Rwanda is how much people are managing to do with their few resources; that and their determination to get on with life.