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Justice compromised

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Material Information

Title:
Justice compromised the legacy of Rwanda's community-based Gacaca courts
Alternate title:
Legacy of Rwanda's community-based Gacaca courts
Physical Description:
1 online resource (144 p.) : ill. ;
Language:
English
Creator:
Haskell, Leslie
Human Rights Watch (Organization)
Publisher:
Human Rights Watch
Place of Publication:
New York, NY, USA
Publication Date:

Subjects

Subjects / Keywords:
Gacaca justice system   ( lcsh )
Dispute resolution (Law) -- Rwanda   ( lcsh )
Restorative justice -- Rwanda   ( lcsh )
Genocide -- Rwanda   ( lcsh )
Human rights -- Rwanda   ( lcsh )
Genre:
bibliography   ( marcgt )
non-fiction   ( marcgt )

Notes

Summary:
"Since 2005, just over 12,000 community-based gacaca courts in Rwanda have heard more than 1.2 million cases against people accused of involvement in the country's 1994 genocide. The local population across the country participated in these trials, and judges were lay members of the community. The objectives of gacaca were to deliver justice for the genocide, reduce the massive prison population, and foster reconciliation. This ambitious experiment in transitional justice leaves behind a mixed legacy. Recognizing the enormous challenge the Rwandan government faced in building a system to rapidly process tens of thousands of cases, this report notes some of gacaca's achievements, including the swift work of the courts, the extensive participation of local communities, and the opportunity for genocide survivors to learn what happened to their relatives. Gacaca may also have helped some victims find a way to live peacefully with neighbors who may have perpetrated crimes against them or their families. However, the longer-term processes of justice and reconciliation remain fraught and incomplete. Rwandans have had to pay a price for the compromises made in applying community-based justice to crimes as serious as genocide. Mixing elements of a modern punitive legal system with more informal conflict-resolution traditions, gacaca lacked a number of important safeguards against violations of due process. Based on Human Rights Watch's extensive trial observations and interviews, and drawing on more than 350 gacaca cases, the report explains how justice has been compromised in many cases. t highlights a wide range of fair trial violations, including limitations on accused persons' ability to effectively defend themselves, intimidation of defense witnesses, flawed decision-making due to inadequate training for lay judges and insufficient guidelines on the application of complex criminal law concepts. Many decisions were likely influenced by judges' ties to the parties in a case or their pre-conceived views of what happened during the genocide. Other cases suggest that accusations of participation in the genocide were no more than trumped-up charges linked to disputes between neighbors and relatives or to the government's attempts to silence critics. Corruption by judges and interested parties was a constant threat to the integrity of the system and some judges had to be removed on that basis. As gacaca draws to a close, the Rwandan government should ensure that a specialized unit of the conventional court system reviews alleged miscarriages of justice. mpartial handling of these cases will be of paramount importance to the legacy of gacaca and to strengthening the Rwandan justice system in the longer term."--P. 4 of cover.
Statement of Responsibility:
Leslie Haskell
General Note:
Title from PDF title page (Human Rights Watch, viewed May 31, 2011).
General Note:
"May 2011"--Table of contents page.
General Note:
"This report was researched and written by Leslie Haskell, Rwanda Researcher at Human Rights Watch, and contains information gathered by several local gacaca observers and previous Human Rights Watch researchers."--P. 144.

Record Information

Source Institution:
University of South Florida Library
Holding Location:
University of South Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
aleph - 002487931
oclc - 727798775
isbn - 1564327574
usfldc doi - S62-00008
usfldc handle - s62.8
Classification:
lcc - KTD157.7 (ONLINE)
System ID:
SFS0036124:00001


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Justice Compromised The Legacy of Rwandas Community-Based Gacaca Courts

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Copyright 2011 Human Rights Watch All rights reserved. Printed in the United States of America ISBN: 1-56432-757-4 Cover design by Rafael Jimenez Human Rights Watch 350 Fifth Avenue, 34th floor New York, NY 10118-3299 USA Tel: +1 212 290 4700, Fax: +1 212 736 1300 hrwnyc@hrw.org Poststrae 4-5 10178 Berlin, Germany Tel: +49 30 2593 06-10, Fax: +49 30 2593 0629 berlin@hrw.org Avenue des Gaulois, 7 1040 Brussels, Belgium Tel: + 32 (2) 732 2009, Fax: + 32 (2) 732 0471 hrwbe@hrw.org 64-66 Rue de Lausanne 1202 Geneva, Switzerland Tel: +41 22 738 0481, Fax: +41 22 738 1791 hrwgva@hrw.org 2-12 Pentonville Road, 2nd Floor London N1 9HF, UK Tel: +44 20 7713 1995, Fax: +44 20 7713 1800 hrwuk@hrw.org 27 Rue de Lisbonne 75008 Paris, France Tel: +33 (1)43 59 55 35, Fax: +33 (1) 43 59 55 22 paris@hrw.org 1630 Connecticut Avenue, N.W., Suite 500 Washington, DC 20009 USA Tel: +1 202 612 4321, Fax: +1 202 612 4333 hrwdc@hrw.org Web Site Address: http://www.hrw.org

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may 2011 1-56432-757-4 Justice Compromised The Legacy of Rwandas Community-Based Gacaca Courts I. Summary .................................................................................................................... .................... 1 II. Recommendations ........................................................................................................... .............. 7 To the Rwandan Government ..................................................................................................... .. 7 To Rwandan Justice Officials ............................................. ..................................................... ...... 7 To the Rwandan Legislature ................................................. ................................................... .... 8 To Donors ..................................................................................................................... .............. 9 To Countries Considering th e Use of Dispute Resolution Mechanisms Similar to Gacaca to Prosecute Serious Crimes ...................................................................................................... ..... 9 III. Methodology .............................................................................................................. ................ 11 IV. The Rwandan Genocide and the Decision to Use Gacaca.............................................................. 13 V. The Initial Phase of Gacaca .......................................................................................................... 17 Differences between the Customary and Contemporary Gacaca Systems .................................... 17 The Legal Framework Governing Genocide Cases and Gacaca Courts .......................................... 18 Rwandas first genocide law ................................................................................................ 18 The gacaca laws ............................................................................................................... ... 19 Gacacas Pilot Phase.................................................................................................................. 21 National Implementation of Gacaca ........................................................................................... 22 Repeated Extensions of Gacacas Closing Date .......................................................................... 23 The Final Phase of Gacaca .......................................................................................................... 25 VI. Balancing Community-Based Conflict Resolution Prac tices with Fair Trial Standards ................. 27 Limited International Fair Trial Rights in Gacaca ......................................................................... 27 The right to counsel .......................................................................................................... .. 28 The presumption of innocence ...................................... ...................................................... 31 The right to be informed of the case and to have time to prepare a defense ......................... 34 The right to present a defense ............................................................................................. 42 The right to testify in ones defense and the right against self-incrimination ......................... 45 Protection from double jeopardy ................................ ........................................................ 48 The right to be present at ones own trial .................. ........................................................... 55 The right not to be arbitrarily detained ...................... .......................................................... 62

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Differences in Judicial Standard s between Conventional Courts and Gacaca ............................... 65 Judges: qualifications, training, remuneration and removal ................................................. 65 Burden and standards of proof ........................................................................................... 69 Sentencing and Reparations .................................................................................................... .. 73 Provisional releases .......................................................................................................... .. 74 Life imprisonment with special provisions ............. ........................................................... 75 Community service ............................................................................................................. 77 Compensation................................................................................................................... 80 VII. The Community Dynamic of Gacaca ........................................................................................... 83 Community Participation ....................................................................................................... ..... 83 Risks for Witnesses ........................................................................................................... ........ 86 Risk of arbitrary arrest and detention or being charged with committing perjury or complicity in genocide ................................................................................................................... ..... 88 Fear of being ostracized by the community ............... .......................................................... 90 Intimidation .................................................................................................................. ...... 91 Gacaca as a Means of Resolving Personal Grievances ..... .......................................................... 94 Silencing Opponents and Critical Voices ................................................................................... 98 The case of Dr. Thoneste Niyitegeka.......................... ........................................................ 98 The case of Father Guy Theunis .......................................................................................... 99 Other cases ................................................................................................................... .... 100 VIII. Independence and Impartiality of the Gacaca Process ............................................................. 104 Potential Conflicts of Interest for Judges ................... ................................................................ 104 Corruption and Personal Gain through Gacaca ......................................................................... 105 Judges requesting bribes ................................................................................................... 10 6 Accused persons seeking exoneration ........................... .................................................... 108 Genocide survivors seeking compensation ........................................................................ 109 External Interference in Decision -Making ................................................................................. 110 IX. Rape Cases: the Antithesis of Gacaca ........................................................................................ 112 The Decision to Transfer Rape Cases to Gacaca ........................................................................ 112 Rape Cases that Were Not Brought before Gacaca ..................................................................... 115 Rape Victims Perspectives on Gacaca ..................................................................................... 116 X. Selective Justice and the Failure to Address Rwandan Patriotic Front Crimes ................................. 119 XI. Perspectives on Gacaca ............................................................................................................ 122 Genocide Survivors Perspectives ............................................................................................ 1 22 The Perspectives of Those Accused of Genocide and their Families .......................................... 124 Reconciliation Achieved? ...................................................................................................... ... 125

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XII. International Support for Gacaca ............................................................................................. 127 XIII. Conclusion .............................................................................................................. ................ 130 Annex I. Letter to the Rwandan Mini ster of Justice from Human Rights Watch, March 30, 2011 ...... 133 Annex II. Response to Human Rights Watch from the Rwandan Minister of Just ice, May 5 2011 ..... 137 Acknowledgements............................................................................................................... ......... 144

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1 Human Rights Watch | May 2011 I. Summary Rwanda is about to complete one of the most ambitious transitional justice experiments in history, blending local conflict-resolution tradit ions with a modern punitive legal system to deliver justice for the countrys 1994 genocide. Rwandan President Paul Kagame described the initiative as an African solution to African problems.1 Since 2005, just over 12,000 community-based gacaca courtsderiving their name from the Kinyarwanda word meaning grass (the place where communities gather to resolve disputes)have tried approximately 1.2 million cases. They will leave behind a mixed legacy. Some Rwandans have welcomed the courts sw ift work and the extensive involvement of local communities, stressing that gacaca has helped them better understand what happened in the darkest period of the country s history and has eased tensions between the countrys two main ethnic groups (the majority Hutu and minority Tutsi). Others are more skeptical: some genocide survivors complain that not all perpetrators were arrested or punished adequately for their crimes. Some of those convicted and sentenced to decades in prison maintain that trials were seriously fl awed, that private individuals and government authorities manipulated the course of justice, that gacaca became politicized over the years, and that ethnic tensions remain high. On both sides, there are doubts, as well as tentative hopes, about gacacas contribution to long-term reconciliation. This report acknowledges the enormous ch allenges the Rwandan government faced in choosing a system that could rapidly process tens of thousands of cases in a way that would be broadly accepted by the population. It expl ains the governments decision to use gacaca to deal with the extraordinary circumstances it faced after the genocide and describes the governments attempt to stri ke a balance between conventional due process and the overwhelming need for swift justice. The report notes some of gacacas main achievements. Using dozens of cases, it also illustrates the price paid by ordinary Rwandans for the compromises made in the decision to use gacaca to try genocide-related cases, including apparent miscarriages of justice, the use of gacaca to settle personal and political scores, corruption, and procedural irregularities. This report is not the first evaluation of the gacaca process. Avocats Sans Frontires (ASF) and Penal Reform International (PRI) have moni tored the process closely since it began and 1 Remarks of President Paul Kagame at the Internatio nal Peace Institute, New York, September 21, 2009.

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Justice Compromised 2 have issued dozens of detailed repo rts on a range of topics related to gacaca. Rwandan human rights organizations, in particular the Human Rights League of the Great Lakes (LDGL) and the Rwandan League for the Promotion and Defense of Human Rights (LIPRODHOR), have also followed the process and have re ported their findings. Books and scholarly articles have been written on gacaca as well. This report draws inspiration from these writings and raises some problems which ha ve already been documented by others, but strives to analyze the gacaca process specifically from a huma n rights perspective, noting its accomplishments and its limitations in this context. When the Rwandan Patriotic Front (RPF), currentl y the countrys ruling party, first took power in July 1994 after ending the genocide, it was confronted by the need to deliver justice for the killings of more than three-quarters of the co untrys Tutsi population, as well as numerous Hutu who opposed the killings or tried to protect Tutsi. In total, more than half a million people perished in the span of only thirteen weeks. The challenge would have overwhelmed even the worlds most advanced justice system In Rwanda, the task was made even more difficult because the genocide had killed a larg e number of judges and other judicial staff and had destroyed much of the judicial infrastructure. A few months after the end of the genocide, Rwandan prisons were bursting at the seams with genocide suspects. By 1998, around 130,000 prisoners were crammed into space meant for 12,000, resulting in conditions th at were universally acknowledged to be inhumane and that claimed thousands of lives. Conventional courts began trying genocide cases in December 1996, but had only managed to try 1,292 genocide suspects by 1998. At that rate, genocide trials would have contin ued for more than a century, leaving many suspects behind bars awaiting trial for year s and even decades. The process might have been accelerated had foreign lawyers and judges been brought in to help, but the Rwandan government rejected such proposals. Instead, the government proposed to set up community-based courts to try genocide-related crimes using the customary gacaca model. Aimed at speeding up genocide trials, reducing the prison population, and rapidly rebuilding the nations social fabric, the new form of gacaca, like its customary predecessor, would be run by local judges and would encourage participation of local community members. On e of the government's aims in encouraging community participation was to make ordinary Rwandans the main actors in the process of dispensing justice and fostering reconciliation. A series of gacaca laws would regulate the genocide trials, mixing certain basic fair tria l standards with more informal procedures.

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3 Huma n Rights Watch | May 2011 Some government officials feared that gacaca might not be the right mechanism for genocide trials, given the gravity and comple xity of the crimes. The customary form of gacaca had only been used for minor civil disputesinvolving property, inheritance, personal injury, and marital relationswith more serious cases, such as murder, reserved for resolution by village chiefs or the kings representative. Th ese government officials worried that judges would struggle to correctly apply the law, gi ven that many had no formal education or training. They warned of the risk of bias, stre ssing that the local setting meant judges would inevitably know the parties in a case which would reduce thei r objectivity and increase the risk of corruption. Most significantly, these government officials warned that gacaca procedures would fail to comply with Rwandas international fair trial obligations. Nearly 10 years after gacaca began, many of these concerns have turned out to be well-founded. The concerns were overruled and, in June 2002, the Rwandan government launched a contemporary form of gacaca to try genocide cases, run by a new institution which later became known as the National Service of Gacaca Jurisdictions (SNJG). For more than two years, gacaca courts in 12 pilot areas used info rmation provided by local community members to compile files on what had happene d in each of these areas between 1990 and 1994. The courts drew up lists of victims and suspects, and classified the latter into four categories according to the severity of the a lleged crimes. The most serious cases (category 1), involving mass murderers, rapists, and lead ers who had incited killi ngs, were transferred to the conventional courts; the rest were to be tried in gacaca. The first gacaca trials started in 2005. They were set to end in late 2007, but the deadline was repeatedly extended over the following th ree years. In mid-July 2010, the government announced that the last gacaca trials in the country had been completed. However, two months later, it unexpectedly declared that gacaca would continue. This latest extension will allow the SNJGtasked with oversight of the gacaca processto review a number of cases of suspected miscarriages of justice and to allo w for revision where appropriate. However, gacaca courts are not expected to handle new cases. Rwandas experiment in mass community-base d justice has been a mixed success. Many Rwandans agree that it has shed light on what happened in their local communities during the 100 days of genocide in 1994, even if not a ll of the truth was revealed. They say it helped some families find murdered relatives bodies which they could finally bury with some dignity. It has also ensured that tens of thou sands of perpetrators were brought to justice. Some Rwandans say that it has helped set in motion reconciliation within their communities.

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Justice Compromised 4 Yet there are multiple shortc omings and failures with gacaca: basic violations of the right to a fair trial and limitations on accused person s ability to effectively defend themselves; flawed decision-making (often caused by judg es ties to the parties in a case or preconceived views of what happened during the genocide) leading to allegations of miscarriages of justice; cases based on what appeared to be trumped-up charges, linked, in some cases, to the governments wish to silenc e critics (journalists, human rights activists, and public officials) or to disputes between neighbors and even relatives; judges or officials intimidation of defense witnesses; corruption of judges to obtain the desired verdict; and other serious procedural irregularities. Many of these shortcomings can be traced ba ck to the single most significant compromise made in choosing to use gacaca to try genocide cases: the curtailment of the fair trial rights of the accused. Although these rights are guaranteed by both Rwandan and international law, the gacaca laws failed to put in place adequate safeguards to ensure that all accused persons appearing before the gacaca courts would receive a fair trial. The gacaca laws tried to strike a balance by protecting some rights including the right to be presumed innocent until proven guilty; modifiying others, such as the right to have adequate time to prepare a defense; and sacrificing others altogether, incl uding the right to a lawyer. Dozens of cases mentioned in this report show how these due process shortcomings have directly contributed to flawed gacaca trials. The government argued that traditional fair trial rights were unnecessary because local community memberswho witnessed the events of 1994 and knew what really happened would participate in the trials and would step in to denounce false testimony by other community members or partiality by the judges Contrary to these expectations, however, Rwandans who witnessed unfair or biased pr oceedings decided not to speak out because they were afraid of the potential repercussion s (ranging from criminal prosecution to social ostracism) and instead passively participated in the gacaca process. Without active popular participation, trials were more easily manipu lated and did not always reveal the truth about events in local communities. Another significant factor restricting the success of gacaca was the limited training given to gacaca judges, most of whom had little or no form al education and, in the vast majority of cases, no formal legal experience or training. Judges were not bound by evidentiary rules (explaining what types of evidence are admissib le and the level of proof needed to convict a person) and were expected instead to rely on co mmon sense and general principles of fairness. Courts had to provide reasons for their decisions, but were free to weigh the evidence as they saw fit. This led to contradictory results in different cases based on similar facts; to flawed

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5 Huma n Rights Watch | May 2011 decisions based, for example, on over-reliance on hearsay (words a person attributes to another who is not present at trial), and to conv ictions based on weak evidence. The fact that gacaca judges received no state remuneration also made the judges vulnerable to corruption. Originally tried in conventional courts, genocide-related rape cases were transferred to gacaca courts in May 2008. Many rape victims based their initial decision to seek prosecution of the alleged rapist on the fact that conventional courts could enact measures to respect their privacy and could keep a womans identity confidential where necessary. The governments decision to transfer their cases to gacaca courts, by definition involving the local community, took them by surprise and left some feeling betrayed. The SNJG justified the decision by claiming that many rape victims were dying of AIDS and that the conventional courts were unable to deal with these case s sufficiently quickly. It emphasized that the decision was based on requests by thousands of women who were raped in 1994. However, it would also enable the Rwandan government to complete all genocide trials as quickly as possible and to end this chapter of its history. Although the law provided for gacaca courts to hear rape cases behind closed doors, victims still feared that the community-based nature of the courts would mean that the local popu lation would know what the closed-door trials were about. On the other hand, some rape victims whose cases were heard by closed-door gacaca courts said that the experience was less traumatic than they expected. One of the serious shortcomings of the gacaca process has been its failure to provide equal justice to all victims of serious crimes commi tted in 1994. Between April and August 1994, soldiers of the Rwandan Patriotic Front (RPF), which ended the genocide in July 1994 and went on to form the current government, kill ed tens of thousands of people. They also carried out other killings later in the year, after the RPF had gained full control of the country. Gacaca courts have not prosecuted RPF crimes. Initially, in 2001, gacaca courts had jurisdiction over crimes against humanity and war crimes, in addition to genocide. But the following year, as gacaca courts began their work, Presi dent Kagame cautioned against confusing crimes committed by RPF soldiers wi th genocide and explained that RPF crimes were merely isolated incidents of revenge, despite evidence to the contrary. Amendments to the gacaca laws in 2004 removed war crimes from the jurisdiction of the courts and a national government campaign followed to make sure that these crimes were not discussed in gacaca. Nearly 17 years after the genocide, Rwandans who suffered or lost relatives at the hands of the RPF are still waiting for justice. As gacaca draws to a close, the Rwandan governme nt faces another ch allenge: correcting the grave injustices that have occurred throug h this process. There have been numerous gacaca cases involving miscarriages of justice or serious procedural irregularities, many of

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Justice Compromised 6 which have not been resolved by existing gacaca appeals procedures. The governments recognition in late 2010 of the need to corre ct miscarriages of justice is a positive step. However, the proposal to ha ve such cases reheard in gacaca risks replicating the same problems and may not remedy the situation. A more appropriate mechanism might involve a specialized unit within the conventional court system, staffed with professional judges or other trained legal professionals, to review th e cases. Fair and impartial handling of these cases is of paramount importance to the legacy of gacaca and to strengthening the Rwandan justice system in the longer term.

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7 Huma n Rights Watch | May 2011 II. Recommendations To the Rwandan Government Announce a definitive deadline for the closure of gacaca and confirm that all outstanding and new genocide-related cases will be decided by the conventional courts. Direct the Ministry of Justice, in consultation with the SNJG, to create a mechanism within the conventional courts to review serious cases of injustice alleged to have occurred in gacaca. Order government officials and st ate agents not to interfere in gacaca and conventional court proceedings and not to attempt to influence decision-making. Order all police officers and state agents to refrain from conducting unlawful arrests and detention; prosecute agents suspected of such conduct and compensate persons unlawfully arrested and detained. Revisit the policy of using camps for communi ty service (travaux dintrt gnral or TIG) and ensure, where possible, that co mmunity service is performed in the local community, rather than in camps, to facilitate reintegration of prisoners into their communities. Ensure that convicted prisoners and persons participating in community service are released as soon as their sentence has been served and compensate persons not released on time; Broaden the official definition of genocide survivor to include persons who lived through the genocide and were targeted or lost family members (i) because either they or their relatives were Tutsi or (ii) because they opposed the killings or tried to protect Tutsi; ensure that all such survivors are eligible for the government-run program of assistance to genocide survivors (provided they meet the other requisite criteria). Provide victims of sexual viol ence with trauma counseling and other assistance programs. Order credible investigations and allow pros ecution of members of the RPF responsible for war crimes and crimes against humanity. To Rwandan Justice Officials Create a specialized unit within the conventional justice system, for example within the Supreme Court, to review appeals from a ccused persons who claim to have suffered miscarriages of justice or serious due process violations in gacaca; develop a two-part review process which would provide: (i) an initial screening of appeals based on certain pre-determined criteria and ( ii) a review of those cases appearing to have merit by

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Justice Compromised 8 specialized panels, headed by professional judges (not gacaca judges) or other trained legal professionals. These professional ju dges may consider a range of sources of information (including the written record from relevant gacaca proceedings and written submissions from the parties) and may hold short hearings where necessary before issuing a final decision affirming the judgment handed down in gacaca or revising the judgment (and sentence) where miscarriages of justice are found to have occurred. They may prioritize review of appeals for individu als still serving (or facing future) custodial sentences in prison or community service programs. Ensure that any new allegations of geno cide are properly reviewed by trained prosecutors and judges before a person is prosecuted in the conventional courts. Verify that no person has been prosecut ed twice for the same crime; review all convictions where a person was tried both before a gacaca jurisdiction and a conventional court or in at least two different gacaca jurisdictions in connection with the same events to identify and rectify violations of double jeopardy. Review all cases in which gacaca courts convicted persons solely for their presence at roadblocks during the genocide; confirm that each case contains adequate evidence of intent and criminal conduct to support the conviction. Prosecute persons who falsely accuse others. Investigate, prosecute, and punish appropri ately members of the RPF responsible for war crimes and crimes against humanity. Monitor the execution of prison rules and regulations relating to the punishment of life imprisonment with special provisions to ensure that the punishment meets national and international standards, including prisoner s right to have regular contact with other prisoners, in addition to outside visits from relatives or friends. Pursue the current proposal to convert any re maining prison time for convicts who have satisfactorily completed the community serv ice program to a suspended sentence and allow convicts to return home. Ensure that the gacaca archives, including the database currently being compiled by the SNJG and the National Commission for the Fi ght against Genocide, are available to the general public in a comprehensive and easily accessible format. To the Rwandan Legislature Amend the laws on divisionism and genocide ideology to bring them in line with international standards, narrowing the scop e of prohibited conduct and requiring a specific intent of the actor, in order to ensure free speech and to encourage individuals to testify freely in judicial proceedings.

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9 Huma n Rights Watch | May 2011 Include in the draft penal code a provision establishing sanctions for state agents who intimidate or tamper with witnesses or judges, fail to execute judicial orders, or obtain statements or confessions under duress or coercion. To Donors Encourage the Rwandan government to create a mechanism to review gacaca cases involving serious injustices. Support the new review mechanism throug h funding and technical expertise. Continue to raise cases involving miscarriages of justice or due process violations with the Rwandan authorities and press them for corrective action. Bring to the attention of the SNJG any past cases of concern which have not been adequately remedied so that they may be reviewed and corrected. Provide the Rwandan judicial system with a dditional funds and technical assistance to strengthen the Victim and Witness Support Unit and to ensure equal access to this unit's services by prosecution and defense witnesses. Call on the government to end interference in gacaca and other judicial proceedings and to punish state agents who abuse their power or who try to influence judicial cases. Ensure that the external review of the gacaca process, currently financed by the European Union (EU) and the Netherlands, provides a meaningful and independent assessment, with recommendations to address shortcomings and to correct miscarriages of justice. To Countries Considering the Use of Di spute Resolution Mechanisms Similar to Gacaca to Prosecute Serious Crimes Ensure fair trial rights are guaranteed. Offer all accused persons and victims access to pre-trial legal advice. Ensure equal access to justice for all victims of crimes committed by any party during the relevant time period or conflict. Provide adequate protection fo r witnesses, survivors, and judges, and ensure that police and prosecutors promptly investigate alle gations of intimidation or corruption. Guarantee an environment in which witnesses may testify openly and freely, without fear of repercussions, and in which freed om of expression is respected. Create a mechanism to examine accusations before prosecutions are undertaken in order to protect against misuse of the judicial process by private citizens or government officials.

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Justice Compromised 10 Establish clear requirements and written guidelines on burden of proof (which should be on the prosecutor or accusing party), standard of proof (with all substantive elements necessary to convict a person), and admissibility of evidence. Vet potential judges vigorously and impose educational requirements; provide adequate judicial training in advance of all trials and throughout the process. Provide some form of payment or benefits to ju dges to help reduce the risk of corruption. Introduce mechanisms for independent trial monitoring, with emphasis on identifying corruption and trial manipulation by privat e individuals or government officials. Confer jurisdiction for sexual violence offenses to conventional or specialized courts located outside victims local communities. Create an ombudsman or other independent oversight body to receive complaints and oversee appropriate investigation of allegati ons of errors of law, violations of due process, and other abuses.

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11 Hum an Rights Watch | May 2011 III. Methodology Human Rights Watch has closely monitored the work of gacaca courts since their creation in June 2002. It has observed all phases of the gacaca process: information gathering, categorization of suspects, trials, appeals, and final revision of judgments. Human Rights Watch followed more than 350 gacaca cases in total, some from initial trial hearings to the last review or revision stage and others only at the later appellate or revision stages. Many of these cases continued over the course of seve ral years. Cases were chosen from different parts of the country, with trial observers dispersed among Rwandas four provinces and the capital Kigali. Human Rights Watch researchers and consultants observing and translating gacaca proceedings spent more than 2,000 days observing trials, conducting interviews, and investigating cases over the course of eigh t years. Researchers conducted hundreds of interviews with participan ts from all sides of the gacaca process, including accused persons, genocide survivors, witnesses, other community members, judges, district coordinators, and local and national government officials. Human Rights Watch met privately with officials at the National Service of Gacaca Jurisdictions (SNJG) and other parts of the Ju stice Ministry and with international donors supporting the gacaca program and participated collectively in larger consultation meetings. Human Rights Watch also regularly conferre d with other nongovernmental organizations (NGOs) monitoring gacaca and, at times, undertook joint initiatives with them to raise particular areas of concern with SNJG authorities. Human Rights Watch also met with members of the National Human Rights Commission to discuss particular cases. On March 30, 2011, Human Rights Watch wrote to the Minister of Justice and the Executive Secretary of the SNJG with a summary of the findings of the present report and its main recommendations. Human Rights Watch invited comments from the government with a view to reflecting its perspective in the final version of the report. On May 5, 2011, the Minister of Justice responded to Human Rights Watchs le tter with written comments. A copy of the Minister of Justices comments and Human Rights Watchs letter is annexed to this report. This report seeks to provide a representative sample of Human Rights Watchs findings on gacaca on issues of key importance. Given the large number of trials observed and interviews conducted, Human Rights Watch is unable to include references to all of the cases in which it found areas of concern or abuses. A small number of cases with multiple

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Justice Compromised 12 irregularities are used throughout the report to illustrate broader patterns observed in the course of researching the report and to underscore how trials often suffered from numerous procedural errors. The report provides as much detail as possibl e on the trials Human Rights Watch observed, including case names where possible. Many individuals interviewed said they feared reprisals by the authorities for speaking openly with Human Rights Watch and only agreed to comment on their personal experiences and on the gacaca system as a whole if their confidentiality was guaranteed. The identity an d other details about some interviewees are therefore omitted from references.

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13 Hum an Rights Watch | May 2011 IV. The Rwandan Genocide and the Decision to Use Gacaca Between April and July 1994, Rwanda experienced the darkest and most brutal period of violence in its history. On April 6, 1994, Pr esident Juvnal Habyarimana was returning from peace negotiations in Tanzania with the Rwandan Patriotic Front (RPF)a rebel group consisting mainly of Rwandan Tutsi refugees in Ugandawhen the plane in which he was travelling was shot down over Kigali by unknow n assailants. All on board were killed. Within hours, Hutu extremists seized control of the government and military and began executing the political elite who might oppose their plans. Assisted by tens of thousands of soldiers, loca l militia, and ordinary citizens, the extremists launched a three-month nation-wide genocidal campaign to wipe out the country's minority Tutsi population. More than half a million Tutsi and Hutu who tried to stop the massacres or protect Tutsi were killed while the world look ed on. Meanwhile, the RPF entered the country from Uganda and began taking over parts of th e country. By mid-July, the RPF had ended the genocide, seizing control of Kigali and the rest of the country. Seventeen years later, the RPF remains in powe r and the genocide continues to weigh heavily on the country. Many Rwandans continue to see each other through an ethnic lens and distrust persons of different ethn icity. People frequently speak of the relatives they lost or the harm they suffered in 1994 and struggle with trau ma and vivid memories of the genocide. Delivering justice for mass atrocities is a da unting challenge, and the scale and complexity of the genocide would have overwhelmed ev en the best-equipped judicial system. In Rwandawhere the justice system was under-re sourced before the genocidethe task was made even more difficult because of the vast nu mber of judges and other judicial staff killed during the genocide and the destruction of much of the countrys infrastructure. Tens of thousands of suspects were arrested after the genocide, often on the basis of a single unsubstantiated accusation of participat ion in the genocide. The number of detainees grew rapidly and quickly overwhelmed the pris on system. By October 1994, an estimated 58,000 persons were detained in prison space intended for 12,000,2 and by 1998, the number of prisoners ha d reached around 130,000.3 Extreme overcrowding and lack of 2 United Nations, Office of the Resident Coordinator, Rwanda: United Nations Situatio n report covering the month of October, October 1994. 3 Human Rights Watch, Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda, vol. 16, no. 10(A), September 2004, http://www.hrw.org/e n/node/11975/section/1, p. 10.; Amnesty International, Annual Report 1999,

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Justice Compromised 14 sanitation, food, and medical care created condit ions that were universally acknowledged to be inhumane and which claimed thousands of lives.4 Many persons were held for years without charge and without their cases being investigated.5 In December 1996 the government began to pr osecute genocide suspects in conventional courts. By early 1998, only 1,292 persons had been judged and relatively few people had confessed to their crimes.6 The authorities realized that, at this rate, it would take decades to prosecute the large number of detainees. Yet they turned down proposals for foreign judges and other legal personnel to work alongs ide Rwandan judicial officials to help speed up the process.7 In January 1998, Vice-President Paul Kagame an nounced that Rwanda could no longer afford the US$20 million a year necessary to support the huge prison population. The government proposed that the most notorious perpetrators be executed (the death penalty being the maximum penalty for genocide at that time) an d that others be tried through a customary judicial mechanism, with some sentenced to pr ison terms and others serving terms of forced labor on public work projects.8 In April 1998, 22 persons convicted of genocide were executed, the first and only formal executions carried out in connection with the genocide. Most had been convicted in unfair and summary trials.9 http://www.amnestyusa.org/annualreport .php?id=ar&yr=1999&c=RWA (accessed October 26, 2010); International Crisis Group, International Criminal Tribunal for Rwanda: Ju stice Delayed, Africa Report No. 30, June 7, 2001, http://www.crisisgroup.org/en/ regions/africa/central-africa/rwanda/030-intern ational-criminal-tribunal-for-rwanda-justicedelayed.aspx (accessed October 26, 2010), p. 33. 4 Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda (New York: Human Rights Watch, July 2008), http://www.hrw.org/en/reports/2 008/07/24/law-and-reality-0, pp. 13-14; Carina Tertsakian, Le Chteau: The Lives of Prisoners in Rwanda (London: Arves Books, 2008), p. 36; Mdecins Sans Fron tires, Report on the Medical Conditions at Gitarama Prison, June 1995; Andr Sibomana, Hope for Rwanda: Conversations with Laure Guilbert and Herv Deguine (London: Pluto Press, 1999), pp. 108-10. 5 Alison Des Forges, Leave None to Tell the Story (New York: Human Rights Watch/Intern ational Federation of Human Rights Leagues, 1999), p. 749. 6 Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda, p. 16. 7 William A. Schabas, Justice, Democracy, and Impunity in Post-Genocide Rwanda: Searching for Solutions to Impossible Problems, Criminal Law Forum, vol. 7 (1996), p. 528; Human Rights Watch/Africa, World Report 1996: Rwanda, http://www.hrw.org/legac y/reports/1996/WR96/Afri ca-08.htm#P599_141723. 8 Integrated Regional Information Network (IRIN), news re port no. 340, January 24-26, 1998; Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda, pp. 16-17. 9 HRW and FIDH Condemn Planned Execut ion of 23 in Rwanda, Human Rights Watch news release, April 23, 1998, http://www.hrw.org/en/news/1998/04/23 /hrw-and-fidh-condemn-planned-executio n-23-rwanda; Amnesty International, Rwanda: 23 People Sentenced to Death, Including Silas Munyagishali and Froduald Karamira, AI Index: AFR 47/11/98, April 22, 1998, http://www.amnesty.org/en/library/a sset/AFR47/011/1998/en/dfb8fc45-dab9-11dd-80bc797022e51902/afr470111998en.html (accessed November 9, 2010); Amnesty International, Rwanda: Further Information on Imminent Executions, AI Index: AFR 47/15/98, April 27, 1998, http://www.amnesty.org/en/library/asset/AF R47/015/1998/en/aab5b143-dab6-11dd-80bc797022e51902/afr470151998en.html (accessed November 9, 2010).

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15 Hum an Rights Watch | May 2011 The government then set up a commission to assess problems facing the country and to propose means of addressing them. Between May 1998 and March 1999, the commission met weekly to discuss issues of unity, democracy, justice, security, and the economy and consulted with representatives of Rwandan so ciety on these issues. One of the concerns discussed was how to provide justice for the genocide. The commission contemplated whether it would be possible to modernize th e customary dispute resolution mechanism of gacaca to enable it to handle genocide-related cases. In August 1999, the commission set out the blueprint for the new gacaca system.10 Its report provided insight into the governments broader political objectives and included a range of views, including some skeptical of the proposal to use gacaca. Discussions within the commission focused heavily on the concepts of accountability and national unity.11 Three main arguments were advanced for using gacaca for genocide trials. First, it would accelerate the process of deli vering justice for the genocide and would ease prison overcrowding. The commission estimated that without gacaca, it would take conventional courts approximately 200 years to try these cases. Second, like the conventional courts, gacaca would break the cycle of impunity by ho lding individuals responsible for crimes, rather than entire families or larger communities. Third, the participatory nature of the gacaca process could help reunite local communities. Wi th trials taking place in the very location where the crimes had occurred and with neighbors, families, and friends looking on, local communities would play an important role in the proceedings and would see justice being done; this in turn would give them greater ownership of the process. Some of the commissions members, however, expressed concerns about whether gacaca was the best means of resolv ing genocide-related cases.12 They feared that using gacaca courtstraditionally reserved for small civi l disputeswould minimize the seriousness of the crimes. Some also questioned whether ordi nary citizens, often uneducated and with no formal legal training, had the skills to manage th e trials and to apply national laws correctly. Others worried that relatives and friends with close connections to the community might be unduly influenced and show partiality in their decisions, creating new conflicts and tensions. Some members expressed concern that witne sses with personal scores to settle or perpetrators with crimes to hide might give fa lse information. They stressed that in certain parts of the country, there were no survivors le ft to testify or to challenge false testimony. 10 Government of Rwanda, Report on the Reflection Meetings Held in the Offi ce of the President of th e Republic from May 1998 to March 1999 (Kigali: Office of the Pres ident of the Republic, 1999). 11 Ibid., pp. 11-41, 55-86. 12 Ibid., pp. 62-63.

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Justice Compromised 16 Finally, some members worried that gacaca trials might not meet international fair trial standards. Those with reservations suggested that gacaca might be better used as an investigative tool to gather evidence at th e local level which could assist conventional courts.13 Many of these concerns turned out to be well-founded. Proponents of gacaca argued against these reservations and ultimately won.14 They emphasized that using gacaca for genocide crimes would not tr ivialize the crimes, but rather would force communities to deal with the cr imes at the level where they happened and would help end impunity locally. They also argued that ordinary citizens could be trained to apply the law correctly and could receive assistance from lawyers where necessary. Some members said that carrying out the trials in public would reduce the risk of judges taking sides and would discoura ge community members from giving false testimony. In their thinking, the advantages of using gacaca to individualize guilt, to dispel the notion that all Hutu committed genocide, and to give ordinary Rw andans an active role in delivering justice for the genocide far outweighed any potential limitations. In June 2002, Vice-President Kagame officially launched gacaca courts to try genociderelated cases and announced five core objectives: Reveal the truth about what happened; Accelerate genocide trials; Eradicate the culture of impunity; Reconcile Rwandans and reinforce their unity; and Prove that Rwanda has the capacity to resolve its own problems.15 13 The United Nations High Commissioner for Human Rights (UNHCHR) expressed similar concerns about the use of gacaca for genocide prosecutions and instead recommended using gacaca to gather facts that could then be presented in the conventional courts. See UN High Commissioner for Human Rights, Gacaca: Le Droit Coutumier au Rwanda, January 31, 1996, p. 39 (on file with Human Rights Watch). 14 Government of Rwanda, Report on the Reflection Meetings Held in the Offi ce of the President of th e Republic from May 1998 to March 1999 (Kigali: Office of the President of the Republic, 1999), pp. 63-65. 15 Speech of the Vice-President and Minister of Defenc e on the Occasion of the Opening of the Seminar on Gacaca Tribunals, Kigali, June 18, 2002, reproduced in Penal Re form International (PRI), PRI Research on Gacaca Report: Rapport III, April June 2002, http://www.penalreform.org/publications/gacaca-research-report-no3-jurisdictions-pilot-phase-0 (accessed September 2, 2010), annex.

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17 Hum an Rights Watch | May 2011 V. The Initial Phase of Gacaca Gacaca draws its inspiration from past efforts by local communities to resolve disputes. However, in designing gacaca for genocide-related cases, th e government made significant changes to the customary model, transforming it into a more formal, state-run judicial apparatus. The courts work began in stages, allowing for amendments and other fine-tuning of the system before gacaca was rolled out nationwide in 2005. Originally set to end in 2007, the date for its completion has been postponed seve ral times. At the time of writing, it is not clear when the process will finally end. Differences between the Customary and Contemporary Gacaca Systems The Rwandan government portrayed its decision to use gacaca for genocide-related cases as revert[ing] to our traditional methods of conflict resolution.16 However, other than in name and certain general characteristics, the version of gacaca used to try genocide-related cases bears little resemblance to the customary form. Little documentation exists about gacaca before 1994. The practice is believed to have come into existence in the pre-colonial period but continued to be used during colonialism and after independence in 1962. In customary gacaca, respected community elders known as inyangamugayo (literally those who detest disgrace) came together as required to mediate family and inter-family disputes related to proper ty, inheritance, personal injury, and marital relations. More serious matters such as cattle theft, murder, or other crimes were left to community chiefs or the kings representative for resolution. The customary gacaca gatherings usually involved only community elders, the disputing parties, their relatives, and immediate neighbor s. The gatherings were dominated by older men since women were not permitted to speak. Customary gacaca emphasized restoring social harmony, with punishment of the perpet rator and compensation to the victim being of lesser importance. Punishment was not indi vidualized, meaning that family and clan members of the accused were also held responsi ble. Often, the losing party had to provide beer to the community as a means of reconciliation. The modern version of gacaca continued the ritual of hearing cases at the local level but differed in five main ways. First, it handled serious crimeswith genocide arguably being the 16 Richard Sezibera, The Only Way to Bring Justice to Rwanda, The Washington Post, April 7, 2002, reproduced by The Global Policy Forum, http://www.globalpolicy.org/component/content/article/168/29030.html (accessed March 3, 2010).

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Justice Compromised 18 gravest of crimesrather than minor, civil disp utes. Second, it was fundamentally retributive or punitive in nature, with the exception of cases involvin g property crimes. Gacaca courts could impose prison sentences ranging from sh ort terms to life imprisonment with special provisions.17 Reconciliation and restoration of so cial order remained objectives of contemporary gacaca, but they were secondary to the punitive process.18 Third, gacaca was governed by an official state instit ution under the Ministry of Justice (the SNJG) and was therefore intimately linked to the state apparatus of prosecutions and incarceration. Fourth, gacaca applied codified, rather th an customary, law. Finally, gacaca judges were not community elders but were instead elected community members (inyangamugayo) and were often relatively young. Women also made up a significant percentage of the judges. The Legal Framework Governing Genocide Cases and Gacaca Courts Rwandas first genocide law In 1996, the Rwandan Parliament provided the le gal framework for conventional courts to try crimes of genocide committed between 1990 and 1994.19 The Genocide Law contained two novel features. First, it classified suspects into four gr oups: category 1 included planners, leaders, organizers, and instigators of the genocide, we ll-known killers, and rapists; category 2 included persons who committed homicide; category 3 included those who killed or inflicted bodily harm without the intention to kill; and category 4 included those who stole or 17 Parliament introduced the penalty of l ife with special provisions when it abol ished the death penalty in 2007. The law defines the penalty as follows: (i) a convicted person is not en titled to any kind of mercy, conditional release or rehabilita tion, unless he/she has served at least twenty (20) years of imprisonme nt and (ii) a convicted person is kept in isolation. Organic law no.31/2007 of 25 July 2007 Relating to the Abolition of the Death Penalty, Official Journal, no. 46 special edition. See al so Law no. 32/2010 of 22/09/2010 Relating to Servin g Life Imprisonment with Special Provisions. 18 Bert Ingelaere, The Gacaca Courts in Rw anda, in Luc Huyse and Mark Salter, eds., Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences (Stockholm: IDEA, 2008), p. 37. 19 Organic law no. 8/96 of 30 August 1996 on the Organization of Prosecutions for Offences Constituting the Crime of Genocide or Crimes against Humanity Committed Since 1 October 1990 (herei nafter Genocide Law). The law neglected an essential part of the definition of genocide contained in the International Convention on the Prevention and Punishment of the Crime of Genocide: the intent of the actor to eliminate all or part of a listed group. Thus persons convicted of crimes like theft commi tted between April and June 1994, could beand wereconvicted of ge nocide with no consideration of whether they were merely seeking to profit opportunistically from th e situation or whether they actually sought to eliminate persons of the Tutsi ethnic group. See Caroline Stainier, Albert Muhayeyezu, Jean Jacques Badibanga and Hugo Moudiki Jombwe, Vade-mecum, Le crime de gnocide et les crimes contre l'humanit devant les juridictions ordinaires du Rwanda (Bruxelles : Avocats sans Frontires, 2004), pp. 119-139.

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19 Hum an Rights Watch | May 2011 damaged property.20 The law prescribed capital punishment for those in category 1, and varying prison sentences and damages for the remaining categories.21 Second, the law introduced the common law practi ce of plea-bargaining, allowing courts to reduce sentences for those who confessed to their crimes and named their accomplices.22 These provisions aimed to speed up the trials of genocide suspects, but initially, very few people confessed to their crime s. Consequently, the government found itself looking for alternative solutions to deal with th e huge backlog of genocide cases. The gacaca laws In 2001, Parliament adopted legislation creating gacaca courts, giving them jurisdiction over serious crimes committed between October 1, 1990 and December 31, 1994, and the ability to judge all suspects except those in category 1 (whose cases remained before the conventional courts).23 The definition of genocide in this law largely followed the definition of the Genocide Law but also required that violations be committed with genocidal intent in order to be qualified as genocide.24 Since 2001, Parliament has amended the gacaca law four times, usually to simplify and accelerate the way in whic h the courts process cases.25 The 2004 law, for example, decreased the number of levels of gacaca jurisdictions, reduced the number of categories from four to three, and reduced the number of judges required to hear cases from 19 to 7.26 Under the 2004 law, gacaca courts were to operate at two lo cal levels (known as the cell and sector levels) in each jurisdiction. Cell leve l courts handled the information gathering phase and classified suspects. They also tried catego ry 3 cases relating to property offenses. All 20 Genocide Law, art. 2. 21 Genocide Law, arts. 14-18. The death penalty was later replac ed by life imprisonment or life imprisonment with special provisions. Organic law of 31/2007 of 25 July 2007 Relating to the Abolition of the Death Penalty. 22 Genocide Law, arts. 10-13. 23 Organic law no. 40/2000 of 26 January 2001 Setting up Gacaca Jurisdictions and Organizing Prosecutions for Offences Constituting the Crime of Genocide or Crimes Against Humani ty Committed Between October 1, 1990 and December 31, 1994 (hereinafter Gacaca Law). Most of the cases decided in gacaca courts related to 1994 only. 24 2001 Gacaca Law, art. 1. This requirement was also contained in later amendments to the gacaca laws. See Organic Law of June 19, 2004 Establishing the Organi zation, Competence 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 (hereinafter Gacaca Law), art. 1. 25 New gacaca laws were adopted in 2 004, 2006, 2007, and 2008. 26 2004 Gacaca Law, arts. 23, 51. Under the 2004 Gacaca Law, categories 2 and 3 merged to become category 2 (addressing intentional and unintentional killings and serious assaults) and property crimes became a category 3 0ffense.

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Justice Compromised 20 other genocide-related trials (involving category 2 and later category 1 offenses) occurred at the sector level. Separate gacaca courts at the sector level handled all appeals.27 The 2007 law increased the number of courts in each area and gave them jurisdiction over well-known killers, previously classified unde r category 1, who until then had remained under the jurisdiction of the conventional courts.28 The law also declared that judges could decide cases so long as five of the seven judges were present.29 Then, in 2008, the government decided to transf er most of the remaining genocide cases in conventional courts to gacaca jurisdictions to alleviate the backlog in the conventional courts.30 Since then, the jurisdiction of the conven tional courts has only covered cases of those accused of being ringleaders and indivi duals who held official positions at the prfecture (province) level or higher. 27 2004 Gacaca Law, arts. 3-4. 28 Organic Law of March 1, 2007 Establishing th e Organization, Competence and Functioning of Gacaca Courts Charged with Prosecuting and Trying the Perpetrators of the Crime of Genocide and other Cr imes Against Humanity, Committed between October 1, 1990 and December 31, 1994, art. 11 (hereinafter Gacaca Law). 29 2007 Gacaca Law, art. 5. 30 Organic Law of 19 May 2008 Modifying and Complementing Organic Law No. 16/2004 of 19/6/2004 Establishing the Organization, Competence 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, art. 1 (hereinafter Gacaca Law). The 2008 Gacaca Law transferred all rape and sexual violence cases to gacaca courts.

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21 Hum an Rights Watch | May 2011 Unlike conventional courts, gacaca courts had no prosecutors. Cases depended largely on accusations initiated by a civil party, usually the victim of the crime or his or her relatives. Panels of five to seven judges heard each case, with one of the judges presiding over proceedings. Judgment was reached by majority rule. Gacacas Pilot Phase Contemporary gacaca courts were launched on June 18, 2002 in 12 pilot sectors around the country.31 The pilot phase took place in three stages: The information gathering phase (collecte dinformation as it is more commonly known) involved community members aged 18 or above meeting every week in a general assembly to gather information on who lived in the ar ea in 1994, who was killed (and if possible whether it happened in that area or in another area), whose property had been damaged, and who had participated in the killings and destruction. Once all relevant information had been collect ed, the cell level courts categorized suspects according to the severity of the alleged crime s. Category 3 suspects, accused of property damage and looting, were to be released from prison and their files sent to the cell level courts for resolution. Category 1 and 2 suspects were to remain in detention, with category 2 suspects to be heard by the sector level gacaca courts and category 1 suspects to be transferred to the national prosecutors office for trial in the conventional courts. It was not until the end of 2004, two-and-a-half years after the pilot phase began, that the first two steps were completed and that gacaca courts were ready to proceed to the trial phase. Rather than wait for the information gathering phase and the categorization of suspects to be completed nationwide, the govern ment authorized pilot jurisdictions to begin 31 PRI, PRI Research on Gacaca Report: Rapport III, April June 2002, h ttp://www.penalreform.org/publications/gacacaresearch-report-no3-jurisdictions-pilot-phase-0 (accessed September 2, 2010), p. 7. A pilot sector was chosen from each of the 12 provinces which existed in Rwanda at that time and compri sed 80 cell level jurisdictions. The pilot sectors were Nkomero (Gitarama province), Gishamvu (Butare province), Nkumbure (G ikongoro province), Nzahaha (Cyangugu province), Nyange (Kibuye province), Murama (Gisenyi province), Mataba (Ruhen geri province), Birenga (Kibun go province), Mutete (Byumba province), Gahini (Umutara province), Nyarugenge (urban Kigali), and Kindama (rural Kigali).

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Justice Compromised 22 trials on March 10, 2005.32 Trials proceeded expeditiously wi th more than 650 persons tried in the first six weeks.33 Trials typically took place on the grass outside of the community s local administrative office, although occasionally sessions were held in school classrooms or other public buildings (particularly during the rainy season). Judges wearing official sashes sat on benches at the front and often had a table in front of them so that at least one of the judges could take notes of the proceedings. Accused persons sat to one side of the judges or in front of the community, with the civil party sitting to the ot her side. Interested part ies rose and stood in front of the judges and community when test ifying. Community members gathered on the grass and under nearby trees facing the judges and could speak freely after witnesses had completed their testimony. Gacaca sessions lasted anywhere from an hour to an entire day, with some trials concluded in a single session and others requiring several weekly sessions. National Implementation of Gacaca The government launched the nationwide info rmation gathering phase on January 15, 2005.34 There was one important procedural change compared to the pilot phase. Instead of gathering information through weekly community meetings, the SNJG tasked local authorities known as nyumbakumi (in charge of households) to collect information.35 These local officials gathered information by assembling small groups or by going door-todoor and later presented the written accusations to the whole community for verification. There was no meaningful community debate on th e nature or veracity of accusations during the verification process. The changes were designed to accelerate the collection of relevant information and to make the process more effi cient. However, the new measures limited the transparency of the process and made it easier for officials and others working with them to construct false or poorly documented accusa tions against individuals for personal or political ends.36 Consequently, the use of nyumbakumi compromised the integrity of the nationwide information gathering phase. 32 Gacaca in Brief, Hirondelle News Agency, March 15, 2005, http://www.hironde llenews.com/content/view/2170/26 (accessed October 5, 2010). 33 Over 600 Trials Completed So Far, Hirondelle News Agency, April 27, 2005, http://www.hirondellenews.com/content/vie w/2370/26 (accessed October 5, 2010). 34 Start of Gacaca Trials Postponed until February, Hirondelle News Agency, January 11, 2005, http://www.hirondellenews.com/content/vie w/1870/26 (accessed October 5, 2010). 35 National Service of Gacaca Jurisdictions (SNJG), Procedure for the Gathering of Information in the Gacaca Courts, TruthJustice-Reconciliation, Kigali, Novemb er 2004, mentioned in PRI, Monit oring and Research Report on the Gacaca: InformationGathering during the National Phase, June 2006, http:// www.penalreform.org/files/repga8-2006-info-gathering-en_0.pdf (accessed October 5, 2010), n.19. 36 PRI, Monitoring and Research Report on the Gacaca: Information-Gathering during the National Phase, June 2006, http://www.penalreform.org/fil es/rep-ga8-2006-info-gathering-en_0.pdf (accessed October 5, 2010), pp. 17-19, 26-37.

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23 Hum an Rights Watch | May 2011 By the end of the information gathering phase nearly 18 months later, the SNJG reported accusations against 818,564 persons broken down in the following categories:37 Category 1 77,269 Category 2 432,557 Category 3 308,738 Total 818,564 *Category 1 cases remained within the jur isdiction of the conventional courts. Of this total, more than 100,000 suspects were be lieved to have died or to be living outside Rwanda.38 Once persons classified in category 1 (t o be tried in the conventional courts) had been removed from the list, gacaca jurisdictions faced a daunting caseload of 610,028 persons.39 Trials began nationwide on July 15, 2006 in more than 12,000 jurisdictions.40 Three months later, the SNJG reported that 16,801 accuse d had been judged, 2,546 of whom had been acquitted.41 By December 2006, the number of judgments had jumped to almost 40,000.42 The Minister of Justice Tharcisse Karugarama announced that all trials would be completed by the end of 2007.43 Repeated Extensions of Gacacas Closing Date The initial target may have been too am bitious. By the end of February 2007, gacaca courts had tried only 50,000 casesa seemingly large number, but a sm all proportion of the overall total.44 The relatively slow pace of trials, coupled with new cases appearing around the country, 37 Press Conference by SNJG Executive Secretary Domitilla Mukan taganzwa, July 3, 2007, Kigali; One Tenth of the Rwandan Population Accused of Genocide, Hirondelle News Agency, April 3, 2007, http://www.hirondellenews.com/content/vie w/9400/26 (accessed October 5, 2010). 38 Press Conference by SNJG Executive Secretary Domitilla Mukantagan zwa, July 3, 2007, Kigali. Stat istics provided by the SNJG indicate that 44,204 suspects were believed to no longer be inside Rwanda and 88,063 suspects were believed to be dead. 39 This figure was more than four times the prison population when it reached its peak in 1998. 40 According to the SNJG, the total number of gacaca courts was 12,103, which broke down as follows: 9,013 at cell level, 1,545 at sector level, and 1,545 appellate courts at sector level. Re marks by Head of the SNJGs Legal Section, Gratien Dusingizimana at National Unity and Reconciliation Week Conference, Kigali, De cember 9, 2009. The power point presentation featured at the conference can be found on the SNJG website under the heading Gacaca Jurisdictions: Achievements, Problems, and Future Prospects, http://www.inkiko-gacaca.gov.rw/En/EnIntrod uction.htm, p. 23 (acce ssed March 15, 2010). 41 Gacaca Jurisdictions Have Extended to All Rwanda And Have Judged 16,801 Persons in Three Months, Hirondelle News Agency, October 19, 2006, http://www.hirondellenews.com/co ntent/view/3936/26 (accessed October 5, 2010). 42 Conclusion of Gacaca Trials Next Year (Rwandan Minister of Justice), Hirondelle News Agency, December 20, 2006, http://www.hirondellenews.com/content/view/ 9252/418 (accessed October 5, 2010). 43 Ibid. 44 Gacaca Results Presented to Cherie Blair, Hirondelle News Agency, February 22, 2007, http://www.hirondellenews.com/content/vie w/4300/92 (accessed October 5, 2010).

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Justice Compromised 24 meant that gacaca courts were unlikely to meet the December 2007 deadline. Parliament attempted to remedy the situation by adopting a new law in March 2007 that allowed gacaca jurisdictions to have multiple courts.45 The movewhich permitted mult iple trials to take place in a given community at the same timeaccelerated trials but resulted in potential witnesses and interested parties sometimes having to choose between attending different trials. Pressure mounted on gacaca judges as the deadline grew near, and trials began to take place at an alarming speed with some individuals sentenced to life imprisonment in trials lasting less than an hour. Human rights groups monitoring the process expressed concern that the quality of decision-making was being sacrificed for the sake of speed.46 The SNJG eventually realized that it could no t meet the deadline and extended it to 2008.47 At the end of September 2008, it announced that it had 1,127,706 cases on record (involving category 1 and 2 suspects), of whic h only 4,679 remained pending in gacaca courts.48 However, genocide accusations continued to emerge and gave rise to new cases.49 Meanwhile, genocide cases in the conventional courts progressed slowly with only 222 cases concluded between January 2005 and March 2008.50 Realizing that at that pace it would take decades to complete category 1 trials, Parliament transferred most remaining category 1 cases to gacaca jurisdictions in June 2008. The SNJG indicated that 90 percent of the cases transferred (at least 8,000 cases) invo lved rape or sexual violence and would be held behind closed doors.51 The SNJG announced that all gacaca trials would be completed by June 2009, but later extended the deadline to December 2009 and then again to April 2010.52 The SNJG announced the completion of all gacaca trials in July 2010, but three 45 More than 2,000 new courts were added to the existing sector and appellate courts. 46 ASF, Monitoring of the Gacaca Courts, Judgment Phase: Analytical Re port No. 3, October 2006-April 2007, http://www.asf.be/publications/Rwanda_Mon itoringGacaca_RapportAnalytique3_EN.pdf (accessed March 21, 2011), pp. 55-58; PRI, The Contribution of the Gacaca Jurisdictions to Resolving Cases Arising from the Genocide: Contributions, Limitations and Expectations of the Post-Gacaca Phase, February 24, 2010, http://www.pen alreform.org/files/Gac aca_final_2010_en.pdf (accessed March 21, 2011), pp. 42-43; PRI, Eight Years OnA Record of Gacaca Monitoring in Rwanda (London: Bell & Bain Ltd., 2010), p. 63. 47 Gacaca Mandate to be Extended, The New Times, December 3, 2007, http://allafrica.com/stories/200712030014.html (accessed October 5, 2010). 48 SNJG Report, October 27, 2008 (copy on file with Human Rights Watch); Edwin Musoni CNLG to Highlight Gacaca Achievements, The New Times, June 2, 2009, http://allafrica.com/stories/2 00906020149.html (accessed October 8, 2010). 49 Integrated Regional Information Network (I RIN), Jury Still Out on Effectiveness of Gacaca Courts, June 23, 2009, http://www.irinnews.org/report.aspx?Repor tID=84954 (accessed October 5, 2010). 50 Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda, annex 2. 51 Human Rights Watch interview with SNJG Executive Se cretary Domitilla Mukantaganzw a, Kigali, Ma rch 11, 2008. 52 Gacaca Courts to Close in June, The New Times, March 12, 2009, http://allafri ca.com/stories/200903130267.html (accessed October 5, 2010); Only 2,261 Gacaca Cases Remain, The New Times, December 10, 2009, http://allafrica.com/stories/200912100016.html (accessed October 6, 2010); Gacaca Closure Postponed One More Time, Hirondelle News Agency, March 31, 2010, http://www.hironde llenews.com/content/view/13340/332

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25 Hum an Rights Watch | May 2011 months later, surprising ly announced that the gacaca process would continue.53 At the time of writing, the SNJG reported completion of the following number of cases:54 Category 1 15,263 Category 2 383,118 Category 3 838,975 Total 1,237,356 The Final Phase of Gacaca The SNJGs announcement, in October 2010, that the gacaca process would continue surprised many who believed the process ha d already ended. The decision to extend gacaca was taken after a September 2010 meeting among representatives of the Ministry of Justice, the SNJG, the Office of the Ombudsman, the National Human Rights Commission (NHRC), and the Ministry of Local Government, all of whom had received complaints from citizens concerning gacaca.55 A confidential report sent by th e NHRC to President Kagame, citing more than 25 cases of serious injustice, and another internal government report compiled by the Office of the Ombudsman, citing more than 230 complaints it had received in connection with gacaca, may have been catalysts for the meeting.56 The meeting concluded with an (accessed October 5, 2010). 53 Last Gacaca Verdict to be Delivered Any Time from Now Hirondelle News Agency, July 14, 2010, http://www.hirondellenews.com/content/view/13 615/1167 (accessed October 6, 2010); Gacaca Official Closure Postponed Sine Die, Hirondelle News Agency, September 29, 2010, http://www.hirondelle news.com/content/view/13738/26 (accessed October 6, 2010). 54 Human Rights Watch email correspondence with SNJG Spokesperson Denis Bikesha, November 16, 2010; Human Rights Watch telephone interview with Bikesha, March 16, 2011. Over the years, the SNJG has encountered difficulties in providing reliable statistics on the number of cases heard by gacaca. It has announced totals of between one million and 1.5 million cases in the past two years. The true number will not be known until all the gacaca files have been gathered at headquarters and entered into an electronic database, expected to be complete d in mid-2011. At the time of writing, the SNJG had recorded 1,237,356 case files. However, it suspected that the total may be slightly lower as it had detected a number of multiple entrie s in its database and was working to eliminate such entries. It should be noted that this figure does not correspond to the number of accused persons. Individuals may have multiple cases in different jurisdictions, depending on the location of the crimes and may have both a category 1 or 2 case pending and a category 3 case pending (for property damage). The SNJG has not provided statistics on the tota l number of individuals tried by gacaca courts. According to the SNJG, the acquittal rate was 30 percent for category 2 cases and 4 percent for category 3 case s. It was unable to provide th e acquittal rate for category 1 cases. In official statistics released to the public in Januar y 2011, the SNJG announced that a total of 145,255 persons had be en acquitted in gacaca, reflecting an overall acquittal rate of less than 12 percent. Les Tribunaux Gacaca ont Acquitt Prs de 150.000 Personnes (Officiel), Hirondelle News Agency, February 28, 2011, http://fr.hirondellenews.com/content/view /15909/613 (accessed March 16, 2011). 55 Human Rights Watch interview with SNJG Executive Secretar y Domitilla Mukantaganzwa and the Head of the SNJGs Legal Section, Gratien Dusingizimana, Kigali, November 11, 2010. 56 Human Rights Watch interview with person who had seen the NHRC report, Kigali, November 16, 2010. The NHRC presented its annual human rights report to Parliament in late November 2010, citing due process violations in 367 gacaca cases and explaining that it submitted the confidenti al report to President Kagame because it be lieved that the SNJG had not adequately addressed concerns set forth in earlier NHRC reports. NHRC Report for 2009-2010, p. 55 (copy on file with Human Rights Watch). See also Remarks of Ombudsman Tito Rutaremara to Parlia ment, November 16, 2010; Office of the Ombudsman, Annual Activity Report January 2009-June 20 10, July 2010, http://www.ombudsman .gov.rw/Documents/RA PPORT%20ANNUEL20092010.pdf (accessed December 8, 2010), pp. 22-23, 26.

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Justice Compromised 26 agreement that all national institutions would transmit their complaints and gacaca files to the SNJG by early November 2010 and that th e SNJG would implement a procedure to review these complaints and any others it had previously received.57 According to the Ministry of Justice, by Ma y 2011 government institutions had received approximately 1,000 applications for review.58 In March 2011, the SNJG spokesperson told Human Rights Watch that the SNJG had identified 40 cases as meriting additional review.59 The SNJG has not publicly divulged the criteria used in determining which cases merit review or explained the manner in which cases are be ing reviewed. Once the SNJG has completed its examination of the case files, it expects to send those cases meriting review back to gacaca jurisdictions for a new hearing and possible corrective measures.60 57 Human Rights Watch interview with SNJG Executive Secretar y Domitilla Mukantaganzwa and the Head of the SNJGs Legal Section, Gratien Dusingizimana, Kigali, November 11, 2010. 58 Letter from Minister of Justice Tharcisse Karugarama to Human Rights Watch, May 5, 2011 (see Annex II ). 59 Human Rights Watch telephone interview with SN JG Spokesperson Denis Bikesha, March 16, 2011. 60 Human Rights Watch interview with SNJG Spokesperson Deni s Bikesha, Kigali, November 11, 2010; Human Rights Watch interview with SNJG Executive Secretary Domitilla Mukantagan zwa and the Head of the SNJGs Legal Section, Gratien Dusingizimana, Kigali, November 11, 2010.

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27 Hum an Rights Watch | May 2011 VI. Balancing Community-Based Confli ct Resolution Practices with Fair Trial Standards The question of how to expeditiously resolve the backlog of genocide-related cases without compromising fair trial rights has been at the forefront of discussions on gacaca for years. The Rwandan government chose gacaca because it would be quick and informal. Yet it faced the daunting task of balancing these benefits wi th more formal fair trial standards enshrined in Rwandan law and international treaties to which Rwanda is a party. The government made a number of substantial compromis es, particularly in relation to the rights of the accused, judges qualifications, and applicable legal stan dards. It believed that the transparency of the gacaca process and the participation of the entire population would legitimize the process and protect the rights of all particip ants, rendering formal fair trial guarantees unnecessary. Human Rights Watch believes th at these compromises did not adequately protect the rights of the parties and led in many instances to unfair trials. Limited International Fair Trial Rights in Gacaca The Rwandan constitution, domestic laws, and international treaties to which Rwanda is a party guarantee certain minimum fair trial rights.61 These include: the right to a lawyer, the right to be presumed innocent, the right to be informed of the charges against oneself and to have adequate time to prepare a defense, th e right to be present at ones trial and to confront witnesses, the right ag ainst self-incrimination, the right not to be tried twice for the same crime, and the right to be free fr om arbitrary arrest and detention. The Rwandan government has expressly or impli citly attempted to guarantee some of these rights but has modified others, such as the righ t to have adequate time to prepare a defense. Other rights, such as the right to a lawyer, have been entirely sacrificed in order to achieve a rapid resolution of cases. In 2009, the UN Human Rights Committee assessed Rwandas compliance with its obligations under the Intern ational Covenant on Civil and Political Rights (ICCPR) and concluded that the gacaca system did not operate in accordance with basic fair trial rules.62 The Committee raised particular concerns about the protection of the rights of 61 Rwanda acceded to the International Covenant on Civil and Poli tical Rights (ICCPR) in 1975 and ratified the African Charter on Human and Peoples Rights (ACHPR) in 1983. This section focu ses largely on these instruments as the basis for Rwandas international obligations. See ICCPR, UN General Assembly Resolution 2200A, December 16, 1966, entered into force March 23, 1976, art. 14; ACHPR, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), 27 June 1981, entered into force 21 October 1986), art 7. 62 UN Human Rights Committee, Consideration of Reports Subm itted by State Parties Under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee, CCPR/C/RWA/CO/3, May 7, 2009, http://www.ccprcentre.org/doc/ICCPR/AR/A_64_40(Vol%20I )_Eng.pdf (accessed April 27, 2010), para. 17, p. 48.

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Justice Compromised 28 the accused and the impartiality of judges.63 UN High Commissioner for Human Rights Louise Arbour raised due process concerns during he r visit to Rwanda in May 2007, citing the worrisome haste of trials, th e lack of legal training for gacaca judges, and the heavy penalties imposed on convicted persons.64 The Rwandan government broadly disregarded these criticisms and made clear, in discussion s with donors and human rights organizations, that compliance with its international obligati ons in this context was not its top priority. The right to counsel Both Rwandan and international law gu arantee the right to legal counsel.65 Gacaca jurisdictions remain an exception to this rule, wi th the accused having no access to counsel at any stage of proceedings. The right to counsel is not expressly curtailed in any of the gacaca laws, but the SNJG has repeatedly made clear that such representation is not permitted. 66 The government justified its decision to exclude defense lawyers from gacaca courts on four grounds. First, the high number of accused pe rsons would make it impossible for all of them to have lawyers without significantly delayi ng the trials. Second, lawyers might unduly influence the non-professional gacaca judges who have a limited understanding of the law. Third, the local communitys participation at tria ls would be sufficient to guarantee a fair trial because community members could speak out if a witness lied and could question witnesses. Finally, emphasizing community part icipation instead of the use of lawyers would maximize the communitys sense of ownership. There have been a handful of cases where lawyers have nonetheless tried to appear on behalf of an accused person. In one instance, a lawyer defending an accused man in a conventional court was allowed to continue advi sing his client after the case was transferred to a gacaca court (although he was not allowed to wear his robe).67 In the 2009 case of human rights activist Fr anois-Xavier Byuma, described below, the SNJG also reluctantly permitted a la wyer to be present but then allowed the court to take measures rendering his assistance ineffective. 63 Ibid. 64 Office of the High Commissioner for Human Rights, United Nations High Commissioner for Human Rights Ends Visit to Rwanda, May 25, 2007. 65 Rwandan Constitution as amended in 2010, art. 18; Law no. 13/2 004 of 17/5/2004 Relating to the Code of Criminal Procedure (Rwandan Criminal Procedure Code), articles 64 and 96; Genocide Law, art. 36. See also ICCPR, art. 14; ACHPR, art. 7. 66 Rwanda/Justice Des avocats rwandais devant les gacacas?, Hirondelle News Agency, September 6, 2007, http://fr.hirondellenews.com/content/view /5308/334 (accessed October 6, 2010). 67 Human Rights Watch interview with lawyer, Kigali, September 11, 2007.

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29 Hum an Rights Watch | May 2011 The governments need to complete all genocide trials in years rather than decades made the usual type of legal representation for each and every accused impossible. However, the Rwandan government could have put in place alternative measures to guarantee the accused the right to legal assistance. For example, in May 2002, the Danish Institute of Human Rights proposed that the Rwandan Ministry of Justice allow national and international judicial defenders (legal profe ssionals, but non-lawyers), funded by foreign donors, to provide the accused, as well as geno cide survivors, with pre-trial legal advice.68 Aimed at informing the accused and victims of their rights and enhancing the transparency of the gacaca process, the proposal also sought to speed up the judicial process by encouraging the guilty to confess in exchange for reduced sentences under the systems plea-bargaining scheme.69 The Ministry of Justice never responded to the proposal.70 The story of Franois-Xavier Byuma Human rights activist Franois-Xavier Byuma was convicted of genocide-related charges following a gacaca trial that violated both Rwandan law and the fundamental principle that accused persons must be tried befo re a fair and impartial court. At the time allegations of genocide first surfac ed against him in early 2007, Byuma headed an organization for the defense of childrens rights (Turengere Abana) and had recently started investigations into an allegation of rape of a 17-year-old girl by a local gacaca judge.71 Knowing that this judge would preside over his case, By uma immediately wrote to the SNJG expressing concern that he may not receive a fair tria l. His letter was found to be baseless and unfounded.72 Byumas trial began in Kigali on May 13, 2007. He was accused of having been present at a roadblock erected to prevent Tutsi fleeing the ge nocide, having a firearm, and participating in 68 Human Rights Watch email correspondence with Danish Inst itute for Human Rights staff member, November 25, 2009. 69 Danish Center for Human Rights, Counseling of Accused and Survivors in the Context of Genocide Trials Before Gacaca Tribunals A Proposal by the Danish Center for Human Rights, May 15, 2002 (copy on file with Human Rights Watch). 70 Human Rights Watch email correspondence with Danish Inst itute for Human Rights staff member, November 25, 2009. 71 Gacaca Trial Condemns Activist to Prison, Hu man Rights Watch news release, May 30, 2007, http://www.hrw.org/en/news/2007/05/30/rwanda-gacaca-trial-co ndemns-activist-prison; Appeals Court Confirms Sentence Against Activist, Human Rights Watch news release, Augu st 22, 2007, http://www.hrw.o rg/en/news/2007/08/22/rwandaappeals-court-confirms-sentenceagainst-activist. At the time, Byuma was also vice-president of the Human Rights League of the Great Lakes (LDGL), a member of the Rwandan League for th e Promotion and Defense of Hu man Rights (LIPRODHOR), and the Rwandan Writers Association (IBARWA). 72 SNJG, The Case of Franois-Xavier By uma, June 12, 2007, http://www.inkikogacaca.gov.rw/pdf/June%20Byuma%20Final%20 copy.pdf (accessed December 10, 2010) [hereinafter referred to as the SNJG Statement on Byuma], p. 1.

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Justice Compromised 30 weapons training. At the outset of the trial, By uma asked to have the judges dismissed on the grounds of conflict of interest, but the court declined his request.73 In protest, Byuma refused to testify. The judge threatened to charge him for his refusal to testify.74 Byuma decided to subject himself to the jurisdiction, despite overt hostility shown by the presiding judge throughout the remainder of the trial.75 At a second hearing a week later, Byuma de fended himself against the charges, but the presiding judge cut off many of his answers and those of witnesses who tried to speak in his defense. In one instance, the presiding judge accused a defense witness of lying.76 The court found Byuma guilty of participating in weapons training and several other counts (including participation in an attack and abduction an d assault of a Tutsi woman) which were not mentioned when the charges were first read to Byuma before trial.77 It sentenced him to 19 years in prison. The court acquitted two co-accuse d of the same crimes, despite one of them having admitted to being guilty of one of the charges. On August 18, 2007, an appeals court upheld th e 19-year prison sentence despite numerous irregularities. Byuma had presented court record s revealing that one prosecution witness who accused him of assault had previously testifie d that a different person committed the crime (and whose name the witness never mentioned in the gacaca case). Byuma pointed out that the trial court declined to hear some of the wi tnesses whom he sought to call in his defense and failed to reconcile contradictions in the evidence. The appeals court gave no justification for its decision affirming the conviction and offe red no explanation for its failure to deal with the fact that the presiding judge of the lower co urt had a clear conflict of interest with Byuma.78 After a strong public outcry from local and in ternational organizations, the SNJG accepted Byumas request for revision and brought a bench of judges from the eastern part of the country to decide the case. The SNJG reluctantly ag reed to allow a lawyer to assist Byuma in his defense (as long as he did not wear his robe). Du ring the hearing, however, the lawyer provided by Avocats Sans Frontires (ASF) was not permitted to sit next to his client and was repeatedly denied the opportunity to question witnesses.79 These restrictions, coupled with the open 73 Article 10 of the 2004 Gacaca Law provides that judges ca nnot decide cases in which a serious enmity exists with the accused or where any other relation [is] considered incompatible with the honest persons independence. 74 The SNJG supported the judges threat in a later statement, sa ying that Byumas initial refusa l to testify at his trial was against the spirit and part icipatory nature of the Gacaca process as a whole. SNJG Statement on Byuma, p. 2. 75 Human Rights Watch, trial observations, Jurisdiction of Biryogo Sector, Nyarugenge District, Kigali, May 13, 2007. 76 Human Rights Watch, trial observations, Jurisdiction of Biryogo Sector, Nyarugenge District, Kigali, May 20, 2007. 77 Human Rights Watch, trial observations, Jurisdiction of Biry ogo Sector, Nyarugenge District, Kigali, May 27, 2007. The woman testified at trial to allegedly having been abducted and gave co ntradictory evidence of having been assaulted by Byuma. The court did not reconcile or explain the inconsistencies in its final judgment. 78 Human Rights Watch, trial observations, Jurisdiction of Biry ogo Sector, Nyarugenge District, Kigali, August 4 and 18, 2007. 79 Human Rights Watch, trial observations, Jurisdiction of Biryog o Sector, Nyarugenge District, January 24, February 7, March 7 and 14, 2009.

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31 Hum an Rights Watch | May 2011 hostility shown by the presiding judge to the lawyers presence, rend ered his assistance ineffective. The court deciding Byumas request for revision gave little consideration to additional defense witnesses who testified but concluded that ne w evidence had been offered by accusing witnesses, even though some of this information was inconsistent with earlier testimony given at trial and on appeal. The court also found Byuma guilty of possessing a firearm, in violation of a 2006 SNJG directive which stated that having a firearm or being at a roadblock did not in itself constitute a crime. The court upheld Byum as conviction but reduced his sentence to 17 years imprisonment.80 Byumas case is also discussed in connection with the right to be presumed innocent, the right to present defense witnesses, and the right against self-incrimination. The presumption of innocence The Rwandan Constitution, the Rwandan Code of Criminal Procedure, the ICCPR, and the African Charter on Human and Peoples Rights (ACHPR) to which Rwanda is also a party, all guarantee that an accused person be presumed innocent until he or she is proven guilty.81 However, this fundamental right has not always been respected in gacaca trials. The UN Human Rights Committee, in its General Comment on Article 14, in reference to the presumption of innocence has advised that ther e is a duty for all public authorities to refrain from prejudging the outcome of a trial.82 Yet senior Rwandan government officials and pro-government media have at times repeatedly and publicly labeled persons as guilty of genocide-related crimes before their gacaca trials were conclude d, and in some cases even before the individuals were formally charged in gacaca. Most often this occurred in high-profile cases against politi cal opponents or critics of the government. Such statements created an atmosphere in which it was difficult to ensure that a person would be presumed innocent and would be judged solely on the basi s of evidence presented at his or her trial. The same is true for persons accused of sectarianism (more commonly known as divisionism) and genocide ideologyboth vaguely defined by law to prohibit ideas, statements, or conduct that might lead to ethnic animosity or violence. The governments 80 Human Rights Watch, trial observations, Jurisdiction of Biryog o Sector, Nyarugenge District, January 24, February 7, March 7 and 14, 2009. 81 Rwandan Constitution, art. 19; Rwandan Code of Criminal Procedure, art. 44; ICCPR, art. 14; ACHPR, art. 7. 82 See UN Human Rights Committee, General Comment No.32, Article 14: Right to equality for courts and tribunals and to a fair trial, 23 August 2007, CCPR/C/GC/32, para.30.

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Justice Compromised 32 campaign to denounce persons suspected of th ese crimes, including pre-trial statements by public officials, often receiving significant me dia coverage, has further called into question the extent to which a person facing trial ca n effectively enjoy a presumption of innocence.83 Between 2003 and 2008, four parliamentar y commissions investigated and denounced purported cases of divisionism and genocide ideo logy, with little or no verification of the facts and no judicial process. In a May 2007 statement responding to accusations that police officers had killed 20 detainees, the Commissioner General of the Rwandan National Police Andrew Rwigamba (formerly chief milit ary prosecutor) said that the detainees had been of extreme criminal character read y to die for their genocide ideology.84 In fact, the detainees, all recently arrested, had not been tried for any crimes and none had been convicted of holding genocide ideology. Th e Commissioners statement was made in the context of the larger government campaign ag ainst genocide ideology and at a time when gacaca trials were operating at full speed. Government officials have used these accusati onsalong with accusations of revisionism, negationism, and gross minimization of genoci de, all of which are proscribed by the Rwandan Constitution and a 2003 law punishing genocideas tools to quash debate on sensitive issues, silence independent opin ion and criticism, and pursue political opponents.85 In April 2009 the government suspended the BBC Kinyarwanda service for two months for trying to give a public platform to individuals the government described as genocide deniers, including Faustin Twag iramungu, the first prime minister in the government formed by the RPF after the genocide and a 2003 presidential candidate against President Kagame. The BBC program was never aired.86 Individuals calling for justice for victims of crimes committed by RPF soldiers in 1994 or attempting to challenge the ruling party in presidential elections in 2010 faced pu blic denunciation and, in some cases, formal criminal accusations. Government officials pu blicly accused political opponents Victoire Ingabire (president of the FDU-Inkingi oppositi on party) and Bernard Ntaganda (president of 83 Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda, pp. 40-43; Amnesty International, Safer to Stay Silent: The Chilling Effect of Rwandas Laws on Genoc ide Ideology and Sectarianism, AI Index: AFR 47/005/2010, August 31, 2010, http://www.amnesty.org /en/library/info/AFR47/005/2010/en (acce ssed December 4, 2010), pp. 13-18. 84 Human Rights Watch, There Will Be No Trial: Police Killings of Deta inees and the Imposition of Collective Punishments (New York: Human Rights Watch, July 2007), http://hrw.org/r eports/2007/rwanda0707/ (accessed March 4, 2010), p. 37. 85 Law no. 47/2001 of 18/12/2001 on Prevention, Suppressi on, and Punishment of the Crime of Discrimination and Sectarianism, art. 1; Law no. 18/2008 of 23/07/2008 Relating to the Punishment of the Crime of Genocide Ideology, arts. 2-3 (hereinafter Genocide Ideology Law); Rwandan Constitution, art. 13; Law no. 33bis/2003 of 06/09/2003 Punishing the Crime of Genocide, Crimes against Huma nity, and War Crimes, art. 4. 86 Rwanda: Restore BBC to the Air, Human Rights Watch news release, April 27, 2009, http://www.hrw.org/en/news/2009/04/27/rwanda-restore-bbc-air.

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33 Hum an Rights Watch | May 2011 the PS-Imberakuri opposition party) as well as outspoken critic Dogratias Mushayidi of divisionism and genocide ideology. All we re later formally charged with these crimes.87 These examples involved prominent opposition figures and critics, but ordinary citizens have also faced genocide ideology accusations. More than 2,000 cases have been brought before Rwandan courts, some even before the 2008 genocide ideology law was adopted.88 A significant proportion of these cases ha ve resulted in acquittals, but often after accused persons spent long periods in detention.89 The laws on divisionism and genocide ideology have had a chilling effect on respect for the presumption of innocence, as well as freedom of expression (discussed later in the report). The right to be presumed innocent also means that a court will not prejudge an accused or treat him or her as if the person is guilty, re gardless of the likelihood of conviction. Yet Human Rights Watch documented dozens of cases in which judges demonstrated preconceived notions of guilt or treated the a ccused as if he or she were guilty from the outset of trial. Often these types of cases in volved judges making disparaging remarks or using a hostile tone toward the accused. For ex ample, in a January 2008 case in the west of the country, a presiding judge opened the trial by asking whether the accused wanted to plead guilty. When the accused said no, the judge said you are not innocent because you are being prosecuted for crimes of ge nocide committed in this prefecture.90 In another case in 2009, discussed below, the presiding judge encouraged two of the accused to plead guilty at the beginning of thei r trial. When they declined, the judge stated in a sarcastic manner that the accused clearly did not understand the benefits of pleading 87No trial date has been set for Ingabire. In February 2011, Nta ganda was found guilty of divisionism (and two other offenses). He was sentenced to four years in prison, two years of which we re for the offense of divisionism. Rwanda: Prison Term for Opposition Leader, Human Rights Watch news release, Febr uary 11, 2011, http://www.hrw.org/en/news/2011/02/11/rwandaprison-term-opposition-leader. Mushayidi was acquitted of divisionism and minimization of the genocide but was convicted and sentenced to life imprisonme nt on other charges. Rwanda: Attacks on Freedom of Expression, Association, and Assembly in the Run-Up to Presiden tial Elections, Human Rights Watch news release, August 2, 2010, http://www.hrw.org/en/news/2010/08/02/rwanda-attacks-freed om-expression-freedom-association-and-freedom-assemblyrun-presi; Genocide Memorial row in Rwanda, BBC News Online, January 18, 2010, http://news.bbc.co.uk/2/hi/8466780.stm (accessed October 6, 2010); Hereward Holland, Rwa ndas Kagame Warns Critical Presidential Rival, Reuters, February 9, 2010, http://www.reuters.com/article/idUSTRE61816V20100209 (accesse d October 7, 2010); Edwin Musoni, Senate May Take PSImberakuri to Court, The New Times, December 29, 2009, http://allafrica. com/stories/200912290079.html (accessed December 6, 2010). 88 Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda, p. 40. Additional statistics were compiled from monthly case reports located on the Supreme Courts webs ite: http://www.supremecourt. gov.rw/spip.php?rubrique71 (accessed February 17, 2011). Human Rights Watch encountered diffi culties in obtaining official statistics on the number of prosecutions for divisionism and genocide ideology. 89 Amnesty International, Safer to Stay Silent: The Chilling Effe ct of Rwandas Laws on Genocide Ideology and Sectarianism, pp. 19-20. 90 Human Rights Watch, trial observations, Case of Evariste Mpam bara, Jurisdiction of Gashali Sector, Karongi District, Western Province, August 19, 2008.

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Justice Compromised 34 guiltyintimating that the accused should have pleaded guilty. The judge proceeded to treat both accused with hostility throughout the rest of the trial.91 Human Rights Watch also observed cases wh ere judges demonstrated bias towards the accused or defense witnesses. The trial of human rights activist Franois-Xavier Byuma, discussed above, is a prime example.92 Judges at both the trial and revision stages showed overt hostility to the accused, frequently interrupting his testimony and that of his witnesses.93 At the trial level, the reason for the presiding judges hostility was obvious: Byuma had previously investigated rape allegations made against the judge.94 There was no known conflict of interest with the judges at the revision stage, yet there too, the judges and in particular the presiding judgeshowed overt bias against the accused from the outset of proceedings, for example through th e presiding judges hostile tone toward the accused and his frequent interruptions of Byumas testimony.95 Gacaca courts also violated the presumption of innocence by shifting the burden of proof to the accused and relying on the accused to prove that he or she did not commit the alleged crime.96 This issue will be discussed in further detail later in this report.97 The right to be informed of the case a nd to have time to prepare a defense Under the Rwandan Constitution, the Rwandan Code of Criminal Procedure and the ICCPR, the fair trial rights of an accused include the right to be informed of the accusations against him or her and the right to have sufficient time to prepare a defense.98 In gacaca cases, these rights have not always been respected: many accused did not receive the legally prescribed notice of cases pending against them, were not provided with sufficient pre-trial information about the charges against them, and were not given enou gh time to prepare their defense. Many accused only learned of the real nature of the al legations against them on the day of their trial. The inability of the accused to involve a lawyer only aggravated these problems. 91 See below, section VI, The story of Thodore Munyangabe. Human Rights Watch, trial observations, Case of Thodore Munyangabe, Shangi Sector, Nyamasheke Dist rict, Western Province, August 25, 2009. 92 See above, section VI, The story of Franois-Xavier Byuma,. 93 Human Rights Watch, trial observations, Case of Franois-Xavier Byuma, Jurisdiction of Biryogo Sector, Nyarugenge District, Kigali, May 13, 27, July 14 and 21, and August 4 and 18, 2007. 94 Gacaca Trial Condemns Activist to Prison, Hu man Rights Watch news release, May 30, 2007, http://www.hrw.org/en/news/2007/05/30/rwanda-gacaca-trial-condemn s-activist-prison. 95 Human Rights Watch, trial observations, Case of Franois-Xavier Byuma, Jurisdiction of Biryogo Sector, Nyarugenge District, January 24, February 7, March 7, and March 14, 2009. 96 ASF, Monitoring Des Juridictions Gacaca, Phase de Jugement: Rapport Analytique No. 5, Janvier 2008-Mars 2010, http://www.asf.be/publications/Rwanda_Moni toringGacaca_RapportAnalytique5_Light.pdf (accessed March 21, 2011), pp. 33-35. 97 See below, section VI, Burden and standards of proof. 98 Rwandan Constitution, art. 18; Rwandan Criminal Procedure Code arts 64, 127-28; ICCPR, art. 14. The right to a defense is also declared in Article 7 of the ACHPR.

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35 Hum an Rights Watch | May 2011 A person facing the prospect of gacaca charges may have learned through information provided by community members during the publ ic information gathering phase that he or she would be summoned before gacaca. However, in 2005, the procedure changed: local officials would go door-to-door or meet with small groups of community members to gather information on crimes committed (as opposed to weekly meetings where community members raised and debated potential allegation s against an accused), with the result that accused persons were less likely to learn of their impending trial. Summons procedure By law, the gacaca jurisdiction must deliver a formal summons to any person asked to appear at a trial.99 The summons should indicate the following information: whether the person is requested to appear as an accuse d or as a witness; whether the person is incarcerated and, if not, the persons addr ess; the charges against the person and the category of the alleged crimes; and the time date, and location of the hearing. The summons should be signed by the gacaca jurisdictions secretary and countersigned by the person to whom it is addressed at the time the person receives it. The summons should be delivered to an accused at his or her current home or last known place of residence at least seven days before the person is scheduled to appear before gacaca.100 The district coordinator, who assists gacaca judges and oversees the management of their caseload, normally deli vers the summons to the person called to appear. Where the accused has no known residence in Rwanda and is believed to live abroad, the summons should be posted at leas t one month in advance on the wall of the gacaca office in the jurisdiction and at the district and provincial government offices.101 If the person receives the notice less than seven days before the hearing, the court should automatically postpone the hearing and issu e a new summons that complies with the prescribed time period.102 Failure to comply with summons procedures In some cases, simple error explained why an accused did not receive a summons according to the required procedure. In other cases, failure to send a summons may have been deliberate in order to trigger a conviction, since courts will decide a case in the absence of 99 2004 Gacaca Law, art. 82. 100 Rwandan Criminal Procedure Code, arts. 127-28. While the gacaca laws do not specify the requisite notice period, the sevenday requirement can be found in the SNJG supplementary procedural guide to judges issued in 2005. SNJG, Simplified Guide to Trial Procedures, January 25, 2005, p. 4 (copy on file with Human Rights Watch). 101 2004 Gacaca Law, art. 99; SNJG, Simplified Guide to Trial Procedures, p. 4. 102 SNJG, Simplified Guide to Trial Procedures, p. 4.

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Justice Compromised 36 the accused if he or she fails to appear three consecutive times.103 Occasionally, local or gacaca officials did not deliver summonses to the accused or to his or her residence, and instead simply gave them to relatives or friends to pass on to the accused.104 In one case in 2007, an individual learned by accident that he had been accused of genocide-related crimes. Former neighbors attending the weekly gacaca trials heard the presiding judge announce that a default judgment would soon be issued against the man.105 The accused had not received a summons, even though the authorities regularly sent notice of other administrative decisions to his address in the area where the crimes were alleged to have taken place. Two years later, when th e same case reappeared before the same gacaca court, the presiding judge tasked with deli vering the summons never gave it to him.106 Another accused, Innocent Nizeyimana happened to learn of an ongoing gacaca case against him through an acquaintance in 2007 Neither he nor his family had received a summons, despite the fact that he continued to own property in the area where he had lived in 1994 to which a summons could have b een sent. He also resided in a nearby neighborhood of Kigali. When Nizeyimana spoke to the presiding judge, he was told that he would be convicted at the next session if he did not appear. The presiding judge was unable to say whether a summons had ever been issued.107 In later proceedings, gacaca authorities sent Nizeyimana a text message with the date and location of the proceedings but never delivered a summons.108 Other accused persons also rece ived notification of upcoming gacaca hearings by text message.109 Human Rights Watch documented many case s in which summonses were delivered less than seven days before the hearing, which prejud iced the ability of the accused to prepare a 103 Normal practice in gacaca is that a person is found guilty by default if he or she does not appear for three consecutive hearings. On the first and second hearing dates, the court me rely records the absence of the accused person and schedules another hearing for the following week. On the third date, the trial proceeds regardless of whether the accused is present. 200 4 Gacaca Law, art. 66. 104 Human Rights Watch, trial observations, Case of Flicien Murenzi, Jurisdiction of Nyamiyaga Sector, Kamonyi District, Southern Province, June 6, 2008; Summons of Phocas Muhizi, dated January 13, 2008 for appearance on January 20, 2008, Jurisdiction of Nyakabanda Sector, Nyarugen ge District, Kigali; Summons of Symphorien Kamuzinzi, dated October 7, 2007 for appearance on October 14, 2007, Jurisdiction of Nyakabanda Sector, Nyarugenge District, Kigali. 105 Human Rights Watch interview with accused whose case arose in Kicukiro District, Kigali, Octo ber 2007. The individuals coaccused did not receive a summons either. The two individual s brought the matter to the attention of the SNJG, which intervened and postponed the hearing to later in the month. 106 Human Rights Watch interview with accused, Kigali, March 12, 2009. 107 Human Rights Watch interview with Innoce nt Nizeyimana, Kigali, October 19, 2007. 108 Human Rights Watch telephone interview with Innocent Nizeyimana, May 7, 2010. 109 Human Rights Watch, trial observations, Case of Dsir Kayiranga, Jurisdiction of Kabuye Sector, Huye District, Southern Province, September 10, 2008; Human Rights Watch interview wi th NGO observer who followed a prior hearing in the case, Kigali, September 4, 2009.

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37 Hum an Rights Watch | May 2011 defense.110 In a striking case in December 2 009, Symphorien Kamu zinzi received his summons at 6 p.m. on the eve of his trial.111 Most often, howeve r, summonses were delivered at least the day before the person was to appear in gacaca. Detainees were the most likely to receive thei r summons late and, as a result of the late notice, typically had the greatest difficulty in ensuring that their witnesses came to the trial.112 In some cases, detainees only learned of the trial the morning of their scheduled appearance.113 In one instance, a detainee first realized that he was to appear in gacaca when a prison guard came and told him to ge t into the prison vehicle. The man requested that the hearing be delayed, but the presidin g judge refused and the trial went ahead. He was convicted and sentenced to life im prisonment with special provisions.114 In some instances, the gacaca court immediately addressed the failure to give sufficient notice by postponing the hearing.115 In other instances, the authorities failure to provide notice enabled persons convicted at the first instance to successfully appeal and obtain a new hearing.116 But in other cases, the accused were fo rced to proceed with their trial despite not having received adequate notice.117 110 Human Rights Watch, trial observations, Case of Emmanuel Nkurunziza, Jurisdiction of Mugina Sector, Kamonyi District, Southern Province, October 6, 2009; Human Rights Watch, trial ob servations, Case of Abb Joseph Ndagijimana, Jurisdiction of Nyanza Sector, Nyanza District, Southern Province, November 26, 2009; Human Rights Watch, trial observations, Case of Flicien Murenzi, Jurisdiction of Mukinga Sector, Kamonyi Distri ct, Southern Province, December 12, 2009; Human Rights Watch, trial observations, Case of Emmanuel Nt agwabira, Jurisdiction of Gatsata Sector Gasabo District, Kigali, May 9, 2009; Summons of Antoine Ntibiringirwa, dated March 25, 2004 for a ppearance on March 27, 2004, Jurisdiction of Gitebe Cell, Muhika Sector, Rubavu District, Western Province and Summons dated May 8, 2004 for appear ance on May 12, 2004, same jurisdiction; Summons of Mulindabigwi, dated June 11, 2010 for appearance on June 12, 2010, Jurisdiction of Biryogo Sector, Nyarugenge District, Kigali. 111 Human Rights Watch interview with relative of the accused, Kigali, June 2, 2010. 112 Human Rights Watch, trial observations, Case of Evariste Mpam bara, Jurisdiction of Gashura Sector, Karongi District, Western Province, August 19, 2008; Letter from wife of accused Ildephonse Ngendahayo to SNJG Executive Secretary Domitilla Mukantaganzwa, December 1, 2006 (copy on file with Human Rights Watch). 113 Letter from Pascal Karekezi to SNJG Ex ecutive Secretary Domitilla Mukantaganzwa, Ju ly 7, 2009 (copy on file with Human Rights Watch). 114 Human Rights Watch, trial observations, Case of Dr. Justin Nsengimana, Jurisdiction of Gishamvu Sector, Huye District, Southern Province, February 19-20, 2010. 115 Usually, the postponement was for one week. However, in is olated cases, the proceedings were postponed for less than seven days which did not remedy the violation. In one case, the gacaca appeals court only postponed the hearing by a day, despite the fact that the accused requested the court to summons several key witnesses who had already confessed to involvement in the same crime. Human Rights Watch, trial observ ations, Case of Emmanuel Nkurunziza, Jurisdiction of Gahogo Sector, Muhanga District, Southern Province, March 30, 2010. 116 Human Rights Watch, trial observations, Case of Innocent Nizeyimana, Jurisdiction of Kanombe Sector, Kicukiro District, Kigali, October 27-28, 2007 (trial court); Jurisdiction of Nyarugunga Sector, Kicukiro District, Kigali, February 4, 11, 2008 (appeals court). 117 Human Rights Watch, trial observations, Case of Dr. Justin Nsen gimana, Jurisdiction of Gishamvu Sector, Huye District, Souther n Province, February 19-20, 2010. Human Rights Watch, trial observ ations, Case of Fulgence Kabundege, Jurisdiction of Biryogo Sector, Nyarugenge District, Kigali (with SNJG-appointed bench fr om Kigarama Sector, Kicukiro District, Kigali), June 15, 2010.

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Justice Compromised 38 Failure to provide adequate informatio n on the charges against the accused In many cases, summonses did not contain enough information about the charges against the accused, as required by law. In most of the cases where Human Rights Watch detected irregularities, the accusations line was simply left blank, leaving the accused with no idea of the accusations against him or her.118 Where charges were specified, they usually consisted of general accusations such as gen ocide or murder with no details of the specific incident or crime.119 Such vague information did not enable the accused to prepare a defense in advance of his or her trial. Other relevant information lackin g from some summonses included the category of crimes of which the person was accused120 and the location of the gacaca hearing.121 In several particularly troubling cases, individuals were informed that they should appear as a witness in someone else's trial and only discovered upon arrival at the hearing that they themselves were accused.122 Some of these cases demonstrate the risk that defense witnesses face, an issue discussed in furthe r detail in section VI of this report. 118 Summons of Phocas Muhizi Muvala, dated January 13, 2008 for appearance on January 20, 2008, Jurisdiction of Nyakabanda Sector, Nyarugenge District, Kigali; Summons of Abb Joseph Ndagijimana, dated November 23, 2009 for appearance on November 26, 2009, Jurisdiction of Nyanza Sector, Nyanza District, Southern Province; Summons of Flicien Murenzi, dated December 10, 2009 for appearance on December 12, 2009, Muki nga Sector, Kamonyi District, Southern Province; Summons of Emmanuel Ntagwabira, dated May 5, 2009 for appearance on May 9, 2009, Jurisdiction of Gatsata Sector, Gasabo District, Kigali. Human Rights Watch has copies of these summonses. 119 Summons of Spciose Uwamwezi, dated January 13, 2008 for a ppearance on January 20, 2008, Jurisdiction of Nyakabanda Sector, Nyarugenge District, Kigali; Summons of Clestin Hategekimana, dated December 18, 2006 for appearance on January 4, 2007, Jurisdiction of Gahogo Sector, Muhanga District, Southern Province; Summons of Dsir Kayiranga, dated March 10, 2008 for appearance on March 19, 2008, Jurisdiction of Kabuye Sector, Huye District, Southern Province; Summons of Symphorien Kamuzinzi, dated November 30, 2009 for appearan ce on December 5, 2009, Jurisdiction of Gikondo Sector, Kicukiro District, Kigali; Summons of Abb Joseph Ndagijimana, dated November 23, 2009 for appearance on November 26, 2009, Jurisdiction of Nyanza Sector, Nyanza District, Southern Province; Summons of Clestin Kabatsinga, dated February 27, 2009 for appearance March 6, 2009, Jurisdiction of Jurwe Se ctor, Gasabo District, Kigali; Summons of Lopold Munyakazi, undated for appearance on October 22, 2009, Jurisdiction of Kayenzi Sector, Kamonyi District, Southern Province; Summons of Emmanuel Kamegeri, dated May 26, 2009 for appearance on June 5, Kimironko Sector, Gasabo District, Kigali; Summons of Flicien Murenzi, dated December 10, 2009 for appearance on December 12, 2009, Mukinga Sector, Kamonyi District, Southern Province; Summons of Martin Bakundikwano, dated February 5, 2 009 for appearance February 12, 2009, Jurisdiction of Kanazi Sector, Bugesera District, Eastern Province; Summons of Pascal Muberuka, dated June 26 2009 for appearance on July 7, 2009, Jurisdiction of Jabana Sector, Gasabo District, Kigali. Human Rights Watch has copies of these summonses. 120 Summons of Symphorien Kamuzinzi, dated November 30, 2009 for appearance on December 5, 2009, Jurisdiction of Gikondo Sector, Nyarugenge District, Kigal i; Summons of Domina Nyirakabano, dated September 29, 2009 for appearance on October 6, 2009, Jurisdiction of Cyeza Sector, Muhanga Distri ct, Southern Province; Summons of Antoine Ntibiringirwa, dated March 25, 2004 for appearance on March 27, 2004, Jurisdiction of Gatebe Cell, Muhika Sector, Rubavu District, Western Province; Summons of Spciose Uwamwezi, dated January 13, 2008 for appearance on January 20, 2008, Jurisdiction of Nyakabanda Sector, Nyarugenge District, Kigali. Human Rights Watch has copies of these summonses. 121 Summons of Lopold Munyakazi, dated September 8, 2008 for appearance on October 7, 2008. 122 Summons of Domina Nyir akabano, dated September 29, 2009 for appearance on October 6, 2009, Jurisdiction of Cyeza Sector, Muhanga District, Southern Province; Summons of Antoin e Ntibiringirwa, dated March 25, 2004 for appearance on March 27, 2004, Jurisdiction of Gatebe Cell, Muhika Sect or, Rubavu District, Western Province; Summons of Joseph Ndabankenga, Jurisdiction of Save Sector, Gisagara District Southern Province, September 11, 18, 2008; Case of Venuste Sebahire, Jurisdiction of Nyamiyaga Sector, Kamonyi District, Sou thern Province, April 15, 2008; Summons of Dsir Kayiranga,

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39 Hum an Rights Watch | May 2011 In a 2009 case in the southern province, a gacaca court summoned Domina Nyirakabano as a witness but, upon her arri val, arrested her and imposed a sentence of 30 years' imprisonment.123 She appealed the conviction, and it was overturned more than five months later, at which time she was released.124 Where individuals did not have enough inform ation about the allegations against them or were unsure whether accusations were pendin g against them, they sometimes approached the district coordinator, gacaca judges, or local authorities in their area for additional information. Many also conducted their own inve stigation into the accusations, with the help of friends and acquaintances in the community. The gacaca laws are silent on whether an accused has the right to receive supplemental information from gacaca or local administrative officials in advance of their trial. In some cases, the authorities willingly provid ed the individuals with the information they requested. In others, individuals were compe lled to pay to obtain information on charges pending against them even though payment was not legally required. In these instances, the payment amounted to a bribe in exchange for the requested information. For example, in an area near Gitarama, a farmer sold the only cow she owned to pay several gacaca judges to tell her whether any genocide accusa tions had been made against her.125 Similarly, gacaca officials required a university student in Kigali to pay 50,000 Rwandan francs (approximately US$82) to find out whether there was a case pending against him.126 Failure to postpone hearings to give the accused adequate time to prepare a defense Human Rights Watch documented numerous cases in which an accused requested an extension of time to obtain documents or to secure the appearance of defense witnesses. Some gacaca jurisdictions granted more time, but others refused and proceeded with the trial.127 dated March 10, 2008 for appearance on March 19, 2008, Jurisdiction of Kabuye Sector, Huye District, Southern Province. Human Rights Watch has copies of these summonses. 123 Human Rights Watch, trial observations Case of Domina Nyirakabano, Jurisdicti on of Cyeza Sector, Muhanga District, Southern Province, October 6, 2009. 124 Human Rights Watch, trial observations Case of Domina Nyirakabano, Jurisdicti on of Gahogo Sector, Muhanga District, Southern Province, March 20 and 22, 2010. 125 Human Rights Watch interview with woman, Gitarama, August 14, 2009. 126 Human Rights Watch interview with relative of the accused, Kigali, August 27, 2009. 127 Human Rights Watch, trial observations, Case of Ndikuryayo Jurisdiction of Nyamabuye Sector, Muhanga District, Southern Province, March 3 and 10, 2009; Human Rights Watch, trial observ ations, Case of Flicien Murenzi, Jurisdiction of Nyamiyaga Sector, Kamonyi District, Southern Province, May 30, 2008; Human Rights Watch, trial observations, Case of an accused who requested anonymity, Jurisdiction in Ki cukiro District, Kigali, May 20, 2009.

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Justice Compromised 40 In a number of appeal cases, the convicted pe rson had not been given a copy of the trial judgment or had not been given enough time to review it before the appeal hearing. Former Cyangugu sous-prfet (local official) Thodore Munyangabe and his co-accused, Abb Aim Mategeko, asked the appellate court to give them a copy of the trial judgment and to postpone the hearing until they had time to review it. The presiding judge responded that the judges had a copy and read a portion of it aloud. The accused then told the bench that the judgment did not conform to what had ac tually happened at trial, noting that the judgment listed new charges against Munyan gabe and stated that Abb Mategeko had confessed to certain crimes when he had not. In response, the presiding judge said, Lets forget those details and move on to the issue raised by this appeal.128 Yet the issue raised was central to Munyangabes appeal because he claimed he was being retried for the same crime of which a conventional court had acqu itted him. The appeals court proceeded to judge the case and upheld his conviction.129 Munyangabes case will be discussed in more detail later in this report.130 In other cases, late notice of a hearing prej udiced the ability of an accused to gather witnesses in time for the hearing. Detained persons often had limited access to relatives who might otherwise have helped them find witnesses.131 Several examples are discussed in the next section. The story of Pascal Habarugira Dr. Pascal Habarugira headed the gynecology depa rtment at the University Hospital of Butare in 1994 and cared for a number of women and ne wborn children during the early period of the genocide. He returned briefly to his native town of Cyangugu in May 1994 before reaching Kigali in August where he began work at the Centre Hospitalier de Kigali (CHK). In 1995, he returned to the University Hospital of Butare and took up hi s prior position. The following year, Habarugira accepted a two-month internship in Paris, leadin g to rumors that he had fled the country, but he returned to Rwanda later that same year. Th e rumors persisted, and in 1999, he followed his wife to Cte d'Ivoire for her studies. The coupl e returned to Rwanda in 2003, and Habarugira 128 Human Rights Watch, trial observations, Case of Thodore Munyangabe and Abb Aim Mategeko, Jurisdiction of Shangi Sector, Nyamasheke District, West ern Province, August 25, 2009. 129 Human Rights Watch, trial observations, Case of Thodore Munyangabe and Abb Aim Mategeko, Jurisdiction of Shangi Sector, Nyamasheke District, Western Province, September 15, 2009. 130 See below, section VI, The st ory of Thodore Munyangabe,. 131 See, e.g., letter from Pascal Karekezi to Executive Secretary Domitilla Mukantaganzwa of the SNJG, July 7, 2009 (on file with Human Rights Watch); Human Rights Watch interview with accuse d man, Kigali, October 19, 2007; Human Rights Watch, trial observations, Case of Pascasie Nyirahategeka, Jurisdiction of Rubingo Sector, Gasabo District, Kigali, July 22, 29, 2008; Human Rights Watch, trial observations, Case of Evariste Mpambara, Ju risdiction of Gashali Sector, Ka rongi District, Western Province August 19, 2008.

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41 Hum an Rights Watch | May 2011 resumed his functions at the hospital in Butare Accusations against Habarugira were made during the gacaca information gathering phase in 2005, and police arrested him in March of that year as he left a medical conference in Kigali.132 In August 2007, Habarugi ra faced trial before gacaca on five counts: partic ipation in a genocide planning meeting, turning a Tutsi patient over to soldie rs to be killed, atte ndance at a roadblock where killings occurred, membersh ip in a crisis committee, an d strangling a Tutsi newborn child.133 On September 5, 2007, the trial court convicted Habarugira of all but the first charge. Five other doctors were also convicted of having played a role in the deat h of Tutsi at Butare university hospital during the genocide All were sentenced to 30 years imprisonment.134 Habarugira appealed his convicti on, arguing that the trial court had not considered the testimony of certain defense witnesses (including eight ge nocide survivors who worked with him at the hospital in 1994) and had ignored important inco nsistencies in the test imony of several women who accused him. He tried to prove that one of the main witnesses against him was not in the area during the genocide as she had claimed, but the court refused to call a detained witness who could confirm this fact or to summon court reco rds from another trial in which the woman had admitted to being elsewhere. Testimony on appeal revealed that Habarugira did not turn the Tutsi woman over to soldiers as alleged and that the newborn chil d whom he had allegedly killed was still alive (and present at the hearing with his mother). Despite the powerful testimony presented, the appeals court uph eld the conviction on Februa ry 6, 2008, but reduced his sentence to 19 years imprisonment withou t any explanation for the reduced sentence.135 The National Human Rights Commission (NHRC), wh ich had sent monitors to observe the case, found so many due process violations at the appe als hearing that it wrote two separate letters to the SNJG executive secretary, calling for revisi on of the conviction. Of particular concern, the NHRC noted:136 Habarugira was forced to proc eed with his appeal even though he had only received a copy of the trial judgment the previous da y and he had not had time to prepare his defense; 132 Human Rights Watch interview with relative of Habarugira, Kigali, April 11, 2008. 133 Human Rights Watch, trial observations, Jurisdiction of Ngoma Sector, Huye District, Southe rn Province, August 22, 2007. 134 Gacaca Court Jails Six Doctors for 30 Years, The New Times, September 5, 2007, http://allafrica.com/stories/200709060079. html (accessed December 10, 2010); T he Brother of the Former President, Sentenced to 30 Years in Prison, Hirondelle News Agency, September 10, 2007, http://www.hirondellenews.com/content/vie w/9901/309 (accessed December 10, 2010). 135 Human Rights Watch, trial observations, Jurisdiction of Ng oma Sector, Huye District, Southern Province, January 30 and February 6, 2008. 136 Letter Ref: CDRH/183/08 from the National Human Rights Co mmission to SNJG Executive Secr etary Domitilla Mukantaganzwa, March 31, 2008, p. 1 (copy on file with Human Rights Watch) ; Letter Ref: CDRH/735/08 from the National Human Rights Commission to SNJG Executive Secretary Domitilla Mukantaganzwa, December 10, 2008 (copy on file with Human Rights Watch).

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Justice Compromised 42 Habarugira was forced to defend himself at one hearing despite being ill and having requested an adjournment; Habarugira was interrupted repeatedly by gacaca judges and denied the right to introduce letters from persons who could not be present at the hearing; The appeals court interrupted the testimony of several defense witnesses and refused to call additional defense witnesses with relevant information; The appeals bench included a judge who had te stified against Habarugira at an earlier hearing in the case; The appeals court did not provide any reason ing in its judgment and did not state the crimes for which it found Habarugira guilty. Habarugiras request for revision was de nied, first in April 2008 by the local gacaca jurisdiction, and again in June 2008 by the SNJG.137 At the time of writin g, Habarugira remains in prison. Habarugiras case is also discussed in connecti on with the right to be presumed innocent and the right to present defense witnesses. The right to present a defense I cannot understand how you ask me to present my defense witnesses when I do not even know the charges against me in this case? An accused man at his trial.138 The fact that many accused only learn of the precise allegations against them on the day of trial impedes their ability to prepare their defe nse and to find defense witnesses. This is particularly worrying given that most genoci de prosecutions in Rwanda depend almost entirely on witness testimony. Rwandan law does not guarantee an accused the right to summon witnesses in his or her defense, but the Rwandan Code of Criminal Pr ocedure suggests that such a right exists because it sets out the procedure for witnesses to provide testimony.139 The ICCPR states that an accused is entitled [t]o examine, or have examined, the witnesses against him and to 137 Letter Denying Revision, signed by the President of Ngoma Sector General Assembly of Gacaca Jurisdictions, April 16, 2008 (copy on file with Human Rights Watch); Letter Ref: 1046/MJD/2009 Denying Revision Signed by SNJG Executive Secretary Domitilla Mukantaganzwa, May 13, 2009 (copy on file with Human Rights Watch). 138 Human Rights Watch, trial observations, Case of Ndikuryayo Jurisdiction of Nyamabuye Sector, Muhanga District, Southern Province, March 3, 2009. 139 Code of Criminal Procedure, ar ts. 54-63, 144, 146, 180, 205.

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43 Hum an Rights Watch | May 2011 obtain the attendance and examination of witnes ses on his behalf under the same conditions as witnesses against him.140 The ACHPR also guarantees the right to [a] defence.141 The governments campaign against divisionism and genocide ideology has proved to be a significant obstacle to securing defense testimony in gacaca courts.142 A number of persons interviewed by Human Rights Watch expressed fear that they might be accused of genocide ideology and imprisoned if they spoke in defense of accused persons or denounced survivors false testimony. With genocide ideology punishable by up to 25 years imprisonment, or life imprisonment for repeat offenders and those convicted of genocide, the perceived risks were high and unlikely to prompt lone voices for the defense to come forward.143 The genocide ideology laws impact on securing defense testimony was so significant that it contributed to the decision by the Internatio nal Criminal Tribunal for Rwanda (ICTR) created by the UN Security Council and tasked with prosecuting crimes that took place in Rwanda in 1994 and several foreign jurisdiction s to deny the transfer of genocide-related cases to Rwanda for domestic prosecution.144 In response, the government adopted legislation in 2009 that precludes prosecution of witnesses for any in-court statements they make (other than perjury).145 Still, the new law does not seem to have assuaged the fears of Rwandans with whom Human Rights Watch spoke. In April 2010, the Minister of Justice anno unced that the government was reviewing the genocide ideology law and had commissioned a study to examine weaknesses in the law.146 In January 2011, the Minister told the UN Human Rights Council that a proposal would 140 ICCPR, art. 14. 141 ACHPR, art. 7. 142 Law no. 47/2001 of 18/12/2001 on Prevention, Suppressi on, and Punishment of the Crime of Discrimination and Sectarianism, art. 1; Genocide Ideology Law, arts. 2-3. 143 Genocide Ideology Law, art. 4. Heavy fines can al so be imposed, in addition to a prison sentence. 144 The Prosecutor v. Yusuf Munyakazi, ICTR, Case No. ICTR-97-36-R11bis, Decision on Prosecutions Appeal Against Decision on Referral Under Rule 11bis (Appeals Chambe r), October 8, 2008, paras. 37-38; The Prosecutor v. Gaspard Kanyarukiga, ICTR, Case No. ICTR-2002-78-R11bis, Decision on the Prosecutions Appeal Against Decision on Referral under Rule 11bis (Appeals Chamber), October 30, 2008, paras. 23-27; The Prosecutor v. Ildephonse Hategekimana, ICTR, Case No. ICTR-00-55B-R11bis, Decision on the Prosecutions Appeal Against Decision on Re ferral Under Rule 11bis (Appeals Chamber), December 4, 2008, paras. 15, 21-23. The United Kingdom and Fr ance have both declined to extradite geno cide suspects to Rwanda on the grounds that the accused may not receive a fair trialthe genocide id eology law being one of the factors likely to deter defense witnesses from testifying. 145 Organic Law no. 12/2009 of 26/05/2009 Modifying and Comple ting the Organic Law no. 11/2007 of 16/03/2007 Concerning the Transfer of Cases to the Republic of Rwanda from the International Criminal Tri bunal for Rwanda and Other States. The new law does not reference its application in connection with gacaca courts, but presumably the same principle would apply. 146 Govt Announces Review of Contentious Genocide Law, Rwanda News Agency, April 5, 2010, http://www.rnanews.com/politics/3094-gov t-announces-review-of-contentious-genoci de-law (accessed November 1, 2010); Rwandan Cabinet Reviews Genocide Ideology Law, Radio France International, http://www.english.rfi.fr/africa/20100811rwandan-cabinet-reviews-genocide-ideology-l aw (accessed November 1, 2010); Genocide Ideology Faces Fresh Scrutiny, The

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Justice Compromised 44 soon be tabled before the Cabinet and later sent to Parliament for review.147 In May 2011, he informed Human Rights Watch that a significan t revision [of the genocide ideology law] has been drafted to address concerns that the law was overly vague and subject to abuse.148 This may represent a significant move toward re specting free speech, but it came too late to positively impact gacaca. At the time of writing, neither the contents nor the exact timeframe for the adoption of any amendments are known. Public officials and prominent community members occasionally intimidated or tried to influence witnesses and their testimony, furt her hindering efforts to secure defense witnesses. These issues will be discussed in greater detail in section VII of this report.149 Human Rights Watch documented a number of cases in which courts obstructed the right of an accused to call witnesses in their defense, including refusing to hear defense witnesses who were physically present or declining the request of the accused to summon potential defense witnesses, such as in the case of Pascal Habarugira, discussed above.150 In its 2009 annual human rights report, the United States State Department also expressed concerns over gacaca courts refusal to allow the accused to present witnesses in their defense.151 A lack of sufficient notice to accused persons in detention seriously compromised their ability to ensure their witnesses appeared at tria l. In one case in 2008, police arrested a man in Kigali and held him at the police station for five days before transferring him back to his native region for trial the following day. As a re sult of his arrest and detention away from the place of trial and without any contact with his family, the man was unable to notify persons who could have appeared in his defense.152 In another case in 2008, courts denied a deta ined woman the opportunity to present defense witnesses at her trial and at her appeal. The trial court convicted her and sentenced her to 30 years in prison. The appeals court refused to postpone the hearing or to summon witnesses Independent, September 22, 2010, http://www.inde pendent.co.ug/index.php/reports/special-report/71-special-report/3463genocide-ideology-faces-fresh-scrutiny (accessed November 1, 2010). 147 Remarks of Minister of Justice Tharcisse Karugarama to UN Human Rights Council, Geneva, January 24, 2011. 148 Letter from Minister of Justice Tharcisse Karugarama to Human Rights Watch, May 5, 2011 (see Annex II ). 149 See below, section VII, Intimidation. 150 See above, section VI,The story of Pa scal Habarugira. Letter from the Nati onal Human Rights Commission to SNJG Executive Secretary Domitilla Mukantaganzwa, March 31, 2 008, p. 1 (copy on file with Human Rights Watch). 151 US State Department, Bureau of Democracy, Human Rights, a nd Labor, Rwanda Chapter of the US 2009 Country Reports on Human Rights Practices, March 2010, http://www.state.gov/g/drl/rls/hrrpt/2009/af/135971.htm (accessed December 8, 2010), p. 9. 152 Human Rights Watch, trial observations, Case of Evariste Mpam bara, Jurisdiction of Gashali Sector, Karongi District, Western Province, August 19, 2008.

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45 Hum an Rights Watch | May 2011 who the woman believed had exculp atory evidence. It justified its decision on the grounds that the woman had not provided the court with the na mes of these witnesses in her written appeal. The 64-year-old woman explained that she was unable to read or write and had asked another person to draft the letter challenging the trial de cision. She stated that she had been unable to confirm what was written in the appeal, but the judges were not persuaded and emphasized that it was her responsibility to ensure the witnesses presence.153 Gacaca courts also occasionally denied the accu sed the right to confront witnesses against him or her. Human Rights Watch observed cases in which the accused was physically present at trial but was not allowed to follow hi s or her own trial in any detail. For example, in the south of the country, two different gacaca courts made the accused move away from the proceedings so that they were unable to hear or see what was happening in their own trials.154 A similar case occurred in Kigali in Octo ber 2008, when a court told five co-accused to sit apart and well away from trial proceed ings, until it was their turn to testify.155 It was not immediately clear why courts ordered segregation of the accused in these types of cases. It is possible that the judges, who did not have ad equate legal training, confused the practice of keeping witnesses outside of earshot of trial proceedings (in order to prevent their testimony from being influenced by other witn esses) and applied it to accused persons. Denying an accused the right to follow witness testimony implicating him or her in an offense and the right to cross-examine those wi tnesses clearly violated the right of these individuals to defend themselves. The right to testify in ones defense and the right against self-incrimination The ICCPR guarantees an accused the right [n]ot to be compelled to testify against himself or to confess guilt.156 The 2004 Gacaca Law fails to guarantee this right, as its preamble states that all Rwandans have a legal duty to testify.157 Article 29 goes on to say th at [a]ny person who omits or refuses to testify on what he/she has seen or on what he/she knows, as well as the one who makes a slanderous denunciation shall be prosecuted by the Gacaca Court which makes 153 Human Rights Watch, trial observations, Case of Pascasie Ny irahategeka, Jurisdiction of Rubingo Sector, Gasabo District, Kigali, July 22, 29, 2008. 154 Human Rights Watch, trial observ ations, Case of Jonas Kanyarutoki et al., Jurisdiction of Nyarwungo Sector, Nyamagabe District, September 27, 2007; Human Rights Watch, trial ob servations, Case of Do Nziraguseswa, Bushekeri Sector, Nyamasheke District, Western Province, August 1, 2008. 155 Human Rights Watch, trial observations, Case of Simon Pierre Nsengiyaremye et al., Jurisdiction of Kabuye Sector, Gasabo District, Kigali, October 11, 2008. 156 ICCPR, Article 14 (3)(g). This righ t is not guaranteed by the ACHPR. 157 2004 Gacaca Law, preamble.

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Justice Compromised 46 the statement of it. Prison sentences range from three to six months, with longer sentences for repeat offenders.158 While Article 29 does not specifically refer to the obligations of the accused, they have normally been expected to testify in their defense and have not been offered the right to remain silent at trial. Requiring the accused to testify effectively inverted the presumption of innocence by making the accused prove that he or she did not commit the alleged crimes. Without lawyers present in gacaca, the burden on the accused to defend themselves has been even greater. Human Rights Watch is aware of only one case where an accused person refused to testify: that of human rights activist Fran ois-Xavier Byuma, discussed above.159 After requesting the disqualification of the presiding judge at tria l on the grounds that he had a conflict of interest, Byuma refused to testify. The presiding judge responded by threatening that the bench can judge people who refuse to testify, effectively forcing Byuma to concede and defend himself.160 Avocats Sans Frontires (ASF), which operated a gacaca-monitoring program nationwide from 2005 until 2010, repeatedly expressed concern that accused persons were required to take an oath to tell the truth before speaking in gacaca in violation of their right against self-incrimination.161 The organization documented cases in which the accused were convicted not only of genocide-related crimes but also of perjury or of having failed to confess his or her crimes.162 In late 2006, the SNJG issued an instruction to judges telling them that an accused cannot be prosecuted fo r false testimony given during his or her own trial.163 However, this instruction did not direct courts to warn accused persons that, by testifying about what happened, they may in criminate themselves and that any statements made could form the basis of a conviction. 158 2004 Gacaca Law, Articles 29-30. 159 See above, section VI, The story of Franois-Xavier Byuma. 160 Human Rights Watch, trial observations, Case of Franois-Xavier Byuma, Jurisdiction of Biryogo Sector, Nyarugenge District, Kigali, May 13, 2007. 161 2004 Gacaca Law, Art. 64(6). ASF, Monitoring of the Gacaca Courts, Judgment Phase: Analytic al Report No. 2, October 2005September 2006, http://www. asf.be/publications/Rwanda_MonitoringGacaca_ RapportAnalytique2_EN.pdf (accessed March 21, 2011), pp. 15-16; ASF, Monitoring of the Gacaca Courts, Judgment Phase: Analytical Re port No. 3, October 2006-April 2007, http://www.asf.be/publications/Rwanda_M onitoringGacaca_RapportAnalytique3_EN. pdf (accessed March 21, 2011), pp. 33-34, 42-43. 162 ASF, Monitoring of the Gacaca Courts, Judgment Phase: Analytical Report No. 3, http://www.asf.be/publications/Rwanda_Mon itoringGacaca_RapportAnalytique3_EN.pd f (accessed March 21, 2011), pp. 45-46, fn 165-166. 163 Instruction No. 10/06 of 1/09/2006 from the Executive Secretary of the National Service of Gacaca Jurisdictions Regarding Arrest and Detention by Gacaca Jurisdictions.

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47 Hum an Rights Watch | May 2011 The government ran a number of programs that provided incentives for accused persons, particularly detainees, to confess to the charges they faced. The gacaca law offered significantly reduced punishments to individu als who confessed, including shorter prison sentences, the possibility of serving portio ns of a sentence through community service (known as travaux dintrt gnral or TIG), and suspension of portions of a sentence.164 While a significant number of detainees confessed to crimes initially, only a third had done so by 2002.165 However, the proportion increased in th e following years, with over half the prison population having confessed by the end of 2004.166 In many parts of the country, prison authorit ies, with the encouragement of government and judicial officials, organized committees to hear detainees confessions, even before gacaca began.167 They also invited evangelical Christians to proselytize in prisons and to try to persuade prisoners to confess. In addition to the prospect of reduced sentences, those who confessed could benefit from better prison cond itions and the promise of an early release.168 In order to be accepted, a confession had to include the names of victims, accomplices, and a detailed description of the crimes committed. Failure to implicate other individuals by name could be a basis for rejecting the confession. The various advantages offered to prisoners who confessed led to a rash of partial and even false confessions.169 Some prisoners were prepared to confess to crime s they had not committed, to minor offenses where other crimes were committed, an d to denounce others wrongfully.170 Encouraging confessions was an obvious way to reduce the backlog of genocide-related cases, but the circumstances in which many pr isoners confessed meant that the information they provided was often unreliable. There we re also numerous contradictions between confessions. The questionable quality of confessions undermined confidence in some gacaca trials. In addition, officials who exerted pressure on people to confess failed to provide enough information to ensure they unde rstood the rights they would forfeit through 164 2007 Gacaca Law, arts. 12-14. 165 PRI, PRI Research on Gacaca Report, Report No. 4: The Guilty Plea Procedur e, Cornerstone of the Rw andan Justice System, January 2003, http://www.penalreform.o rg/publications/gacaca-research-reportno4-guilty-plea-procedure-cornerstonerwandan-justice-system-0 (accessed March 21, 2011). 166 Carina Tertsakian, Le Chteau: The Lives of Prisoners in Rwanda (London: Arves Books, 2008), p. 398. See also ASF, Monitoring Des Juridictions Gacaca, Phase de Jugement: Rapport Analytiq ue No. 5, Janvier 2008-Mars 2010, http://www.asf.be/publications/Rwanda_Mon itoringGacaca_RapportAnalytique5_Light.pdf (accessed March 21, 2011), p. 45 167 For a general discussion of confessions in prisons, see PRI Research on Gacaca Report, Report No. 4: The Guilty Plea Procedure, Cornerstone of the Rwandan Justice System, January 2003, http://w ww.penalreform.org/publications/gacacaresearch-report-no4-guilty-plea-proc edure-cornerstone-rwandan-justice-sy stem-0 (accessed March 21, 2011). 168 PRI, Research on the Gacaca PRI Report V, September 2003, http ://www.penalreform.org/files/rep-2003gacaca5CellPreparations-en_0.pdf (accessed March 23, 2011), p. 10. 169 PRI, Eight Years OnA Record of Gacaca Monitoring in Rwanda pp. 34-37. 170 Ibid.

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Justice Compromised 48 confession. If a gacaca court later found that a person had made a partial confession or had confessed to crimes which he or she had not committed, it could hand down harsh prison sentences and could exclude the person from participating in the community service program. Indeed, a number of prisoners were re turned to prison on the grounds that their confessions were incomplete. Protection from double jeopardy Most legal systems accept the general principle that an accused cannot be tried twice for the same offense (known as "double jeopardy"), unle ss new evidence comes to light or there is evidence that the first trial involved a miscarriage of justice. Protection from double jeopardy provides accused persons with a guarantee that once judged, the case is over, and helps nurture public confidence in the judicial system. Both the Rwandan penal code and the ICCPR prohibit double jeopardy.171 Genocide-related charges can be multi-faceted, potentially involving a number of distinct criminal acts that may have been committed at different times and in di fferent locations. This can make it difficult to clearly distinguish betw een cases involving a violation of the principle of double jeopardy and cases in which an in dividual is charged in separate cases with unrelated offenses. However, both the minister of justice and the SNJG executive secretary have acknowledged that dozens of accused persons repeatedly brought to trial in gacaca proceedings have suffered a violation of their right to be protected from double jeopardy.172 The double jeopardy legal loophole In theory, appeals against conventional courts judgments should be heard by conventional appeals courts. Similarly, decisions rendered in gacaca jurisdictions should be decided by gacaca appeals courts. However, the 2004 Gacaca Law provided an exception to this rule and gave gacaca courts the power to prosecute persons for crimes for which they had already been tried in first and second instance conventional courts, regardle ss of whether they had been convicted or acquitted.173 Without explanation, the law simply states that any discrepancy in judgments 171 Rwandan Penal Code, art. 5; ICCPR, art. 14. The principle of res judicata or non bis idem, which exists in both common law and civil law jurisdictions, provides that once a judgment is ha nded down in a particular case, a court which is confronted wit h a later case that is identical to or substantially the same as the earlier one (e.g., as related to the same incident or transaction) must dismiss the case and preserve the effect of the first judg ment. See also International Cour t of Justice Statute, art. 38(1 )(c); ICTR Rule 13. 172 Human Rights Watch interview with Minister of Justice Tharcisse Karugarama, Kigali, September 10, 2007; Human Rights Watch interview with SNJG Executive Secretary Domitilla Mukantaganzwa, Kigali, November 7, 2007. 173 2004 Gacaca Law, article 93.

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49 Hum an Rights Watch | May 2011 between two courts in the same case should be resolved by the gacaca appeals court.174 This provision led one Supreme Court judge to conclude that gacaca courts had become the new Supreme Court.175 Judges and others became aware of the risks of double jeopardy as early as 2005 when gacaca courts began to investigate and prosecut e persons already judged by conventional courts.176 Supreme Court judges asked the minister of justice to remedy the problem in 2006, either through legislative reform or by some other means.177 Human Rights Watch and other international organizations following the gacaca process raised similar concerns with the SNJG, providing it with detailed examples of cases where violations had occurred.178 In May 2008several years after judges and no ngovernmental organizations first raised the issue with the SNJGParliament amended the la w to close the legal loophole. Under the new law, cases tried by gacaca courts may only be appealed to gacaca appeals courts in the same jurisdiction and cases tried by conventional or military courts may only be reviewed by their respective appellate courts.179 However, the law was poorly drafted and a loophole remains. Cases judged by first instance conventional courts which have not been appeal ed to the highest level can be brought again in gacaca, even after the deadline for appeal has expired in the conventional courts.180 In addition, the law does not provide a remedy for cases where double jeopardy violations have already occurred. It also leaves open the thorny question of whether a case can be revived if new evidence comes to light, or new allegations have been made relating to events which have been the subject of a previous case. Cases involving a violation of double jeopardy In some instances where a case previously judged in the conventional courts reappeared in gacaca, the gacaca court did not know how to handle the issue and asked the SNJG for legal 174 Ibid. The 2006 law repeats the same provision but allows anyone to ask for revision of the judgment, not just the parties to a case as specified in the 2004 law. 2006 Gacaca Law, article 20. 175 Human Rights Watch interview with Supreme Court judge, Kigali, November 8, 2006. 176 Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda, p. 86. 177 Human Rights Watch interview with Suprem e Court judge, Kigali, November 8, 2006. 178 Human Rights Watch interview with SNJG Executive Secr etary Domitilla Mukantaganzwa, Kigali, November 7, 2007. 179 2008 Gacaca Law, art. 24. 180 Ibid. Article 24 states: The Gacaca appeal court is the only competent court to review a case that was fully determined by another Gacaca court. A case dete rmined at a last appellate level by an ordinary or military court may also be reviewed by the same court (emphasis added). Joseph Mulindangabo challenged the constitutionality of being tried twice for the same crime after he was called to appear in gacaca on the same charges for which he had been pr eviously acquitted in a conventional court. The case ended up before the Supreme Court but was never ruled upon because the 2008 Gacaca Law allowed such cases to be referred to gacaca. Mulindangabos case was therefore sent to gacaca courts for retrial.

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Justice Compromised 50 advice, usually by briefly adjourning the hearing. According to the SNJGs executive secretary, one gacaca judge excused himself in the middle of a hearing and pretended to use the bathroom in order to call her for advice on whether to proceed with the case. The SNJG executive secretary advised the judge to dismiss the case, which he did.181 In other cases, the court declared it was not competent to he ar the case. The SNJG occasionally reminded gacaca judges that they should not decide cases which had already been ruled on by conventional courts, and that they should examine whether the allegations in the two cases were identical to determine whether to adjudicate the case.182 In a number of other cases, however, gacaca courts rejected the argument that a case should be dismissed because the accused ha d already been prosecuted for the same offense.183 In one case, a soldier arrested a man in 1997 on the basis of a single witness statement. The man spent seven years in prison before a conventional court acquitted him on the grounds that he had been mistaken for another person of the same name. Two years later, in August 2006, a gacaca court summoned him to appear as a witness in another case. Upon arrival, the court accuse d him of the same offense of which he had previously been acquitted. The court convicted him and imposed a 30-year prison sentence. Four months later, an appeals court overturned the de cision. He was released two weeks later.184 Gacaca judges in Huye district told Human Rights Watch that two accused men faced charges in gacaca that were identical to cases previously heard in the conventional courts.185 In the first case, the gacaca court convicted and sentenced a man to 19 years' imprisonment.186 In the second case, the gacaca court convicted a former parliamentarian in December 2009 and sentenced him to life imp risonment with special provisions, even though a conventional court had alread y acquitted him of the same charges.187 181 Human Rights Watch interview with SNJG Executive Secr etary Domitilla Mukantaganzwa, Kigali, November 7, 2007. 182 Letter from SNJG Executive Secretary Domitilla Mukantaganzwa to President of Jurisdiction of Nyaruganga Sector, Kicukiro District, February 3, 2010, read publicly at revision hearing, March 5, 2010. Human Rights Watch, interviews with persons knowledgeable about the case of Aphrodis Mugambira (Jurisdict ion of Kanombe Sector, Kicukiro District, March 5-6, 2010), Kigali, March 15 and 22, 2010. 183 Human Rights Watch, trial observations, Case of Faustin Musabimana, Jurisdiction of Gikirambwe, Huye District, Southern Province, October 24, 2007; Human Rights Watch, trial observat ions, Case of Priest Joseph Ndagijimana, Jurisdiction of Kamusenyi Sector, Muhanga District, Southern Province, March 27-3 1, 2009, June 16, 2009 and Same Jurisdiction (with SNJGappointed bench from Nyanza District, Southern Province), November 8-9, 15, 22, 2009; Human Rights Watch, trial observations, Case of Jacques Twahirwa, Jurisdiction of Gahogo Sector, Muhanga District, Southern Province, March 3, 10, 2009. 184 Human Rights Watch interview with a ccused man, Kigali, September 13, 2007. 185 Human Rights Watch interviews with two separate gacaca judges, Huye District, October 24, 2007. 186 Human Rights Watch, trial observations, Case of Faustin Musabimana, Jurisdiction of Gikirambwe, Huye District, Southern Province, October 24, 2007; Human Rights Watch interview with relative of Musabimana, October 4, 2007. 187 Human Rights Watch, interview with NGO observer who attended his trial in the conventional court, March 25 and August 30, 2010. The accused, Jean-Baptiste Sebarame, had been ac quitted by the Court of Higher Instance in Butare. Prosecutor v. JeanBaptiste Sebarame, Judgment, Huye, RP (Gen) 0054/05/TP/But, December 18, 2009.

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51 Hum an Rights Watch | May 2011 Human Rights Watch also documented cases where the accused were tried twice by the same or a neighboring gacaca jurisdiction on identical charge s. Usually the second case was brought after the person making the accusations was dissatisfied with the original verdict. In one case in the south of the country, a man was accused of involvement in the death of an elderly Tutsi woman in three different jurisdic tions. In the first jurisdiction, the court acquitted the man.188 No appeal was filed. The victims son (the civil party) had already accused another person of killing his mother and that person had been convicted in gacaca.189 The following summer, in July 2008, the case re-e merged in a neighboring jurisdiction at the appellate level. The court declared that it lacked the competence to hear the case since the matter had already been decided by another court.190 A month later, the case reappeared before a third jurisdiction This time, the court convicted the man and sentenced him to 19 years in prison.191 Odette Uwimana had a similar ex perience in December 2009. A gacaca court convicted her of involvement in the death of a Tutsi woman. The decision was overturned on appeal.192 Dissatisfied with the acquittal, the victims re lative then brought the same charges against Odette Uwimana's husband, Vincent Uz arama, in the same jurisdiction.193 Uzarama was acquitted but his wifewho was neither a witness nor an accused in the casewas again convicted and sentenced to 15 years in prison, a decision affirmed on appeal.194 The SNJG later appointed a new bench of judges to hear the case.195 The new court acquitted Uwimana and ordered her release in March 2010, by which time she had spent nearly six months in detention.196 Double jeopardy violations have also occurred in more subtle ways in an attempt to circumvent the bar against repeat prosecutions. In some cases, accused persons found 188 Human Rights Watch, trial observations, Case of Do Nziraguseswa, Jurisdiction of Nyamasheke Sector, Nyamasheke District, Western Province, September 8-9, 2008. 189 Human Rights Watch email correspondence with foreign observer who attended earlier trial of Andr Rutayisire in 2007, April 16, 2010. 190 Human Rights Watch, trial observations, Case of Do Nziraguse swa, Jurisdiction of Bushekeri Sector, Nyamasheke District, August 1 and 9, 2008. 191 Human Rights Watch, trial observations, Case of Do Nzir aguseswa, Jurisdiction of Gihundwe Sector, Rusizi District, September 8, 2008. 192 Human Rights Watch interview with persons kn owledgeable about the case, December 6, 2009. 193 Human Rights Watch, trial observations, Case of Odette Uwim ana, Jurisdiction of Jabana Se ctor, Gasabo District, Kigali, December 6, 2009. 194 Ibid. 195 Human Rights Watch, trial observations, Case of Odette Uwim ana, Jurisdiction of Jabana Sector, Gasabo District, Kigali (judged by an SNJG-appointed bench from Shyogwe Sector, Muhanga District, Southern Province), March 14, 2010. 196 Ibid.

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Justice Compromised 52 themselves faced with slightly modified char ges or new witnesses who had not testified in the original case. In one case, a man acquitted in gacaca in October 2007 was re-arrested 10 months later on the same allegations. The man challenged the fact that the civil party in the new case had not come forward in the original case, but the gacaca court proceeded to convict and sentence him to 19 years in prison.197 The case was one of 18 cases in the jurisdiction where accused persons were retried at the direction of the district coordinator.198 In a 2008 case, a man found himself accused twice, first in a conventional court which acquitted him,199 then before gacaca, for allegedly being involved in killings at Gahini hospital in eastern Rwanda. When the man ch allenged the case on the basis of double jeopardy, the gacaca court claimed he was being tried not fo r killing Tutsi at the hospital (the allegations in the first trial) but rather for mutilating the corpses. The gacaca court sentenced him to 30 years imprisonment, a decision affirmed on appeal.200 Given that these acts had not been raised in the first trial, the case appeared to be an attempt to circumvent the bar against double jeopardy. The mans request fo r revision of his case was denied, and he remains in prison. In another case, a man found himself tried twice in the same gacaca jurisdiction. The initial case involved category 2 charges relating to his alleged presence at a roadblock where people were killed, although not in his presence.201 The appeals court reversed the decision and ordered his release.202 However, in September 2008, a new court prosecuted him on category 1 charges based on allegations that he had told the local mayor to erect roadblocks in an area where killings later took place. The man challenged the validity of the trial on the grounds that no new information had been introduced that might justify a second trial. He also noted that no one had accused him of wrongdoing and that the only evidence in the case consisted of a statement he had made during the information gathering phase about a conversation he had with the local mayor in 1994 discussi ng the need to protect the community.203 Despite more than a dozen witnesses testifying in his defens e, and none against him, the court convicted 197 Human Rights Watch, trial observations, Case of Evariste Mp ambara, Gashali Sector, Karongi District, Western Province, and interviews with local residents, August 19, 2008. 198 Human Rights Watch interview with gacaca judge, Karongi District, Western Province, August 19, 2008. 199 Prosecutor v. Jean-Bap tiste Nkurayija et al., Case No. RMP 83545/S4/NTI/NSE, Kibungo Court of First Instance, January 19, 2001. 200 Human Rights Watch, trial observations, Case of Jean-Baptiste Nkurayija, Jurisdiction of Gahini Sector, Kayonza District, Eastern Province, August 21 and 28, 2008. 201 Thousands of people were stopped and killed at roadblocks during the 1994 genocide. 202 Human Rights Watch interview with local sector official, September 11, 2008. 203 Human Rights Watch, trial observations, Case of Joseph Ndab akenga, Jurisdiction of Save Sector, Gisagara District, Southern Province, September 11 and 18, 2008.

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53 Hum an Rights Watch | May 2011 and sentenced him to life imprisonment with special provisions.204 A local official admitted to Human Rights Watch that the case was ill-founded and that the mans earlier statement was being used to bring a new case with slightly amended charges. The official said that the second decision led to an outcry among the local population.205 At the revision stage, a court affirmed the conviction but reduced the sentence to seven years imprisonment.206 In addition to being an example of double jeopardy, this case illustrates how local community participation does not always protect accused persons against unfair trials. Similar double jeopardy scenarios occurred when gacaca jurisdictions began a new round of information gathering across the country in 2009. For example, in October 2007 a gacaca court in the Western province acquitted a man who had been detained for 13 years without trial. Almost two years later, a detainee raised nearly identical accusations against the man. The court failed to consider whether the new allegations were identical to those raised in the first case and convicted the man, impos ing an eight-year prison sentence. 207 The story of Thodore Munyangabe Thodore Munyangabe served as a high-ranking local official (sous-prfet) of Cyangugu prfecture before, during, and after the genocide. He was one of the few government officials who remained in service after the genocide, having received much praise for his actions to protect and assist Tutsi.208 In March 1995, he was arrested by the police on accusations of involvement in the genocide. A conventional court tried and convicted him, se ntencing him to death which was the maximum penalty at the time. An appeals court reversed the conviction in July 1999 and ordered his release. Police placed Munyangabe under house arrest within days of his release, however, and formally rearrested him a month later on new, unspecified accusations of genocide.209 Munyangabe remained in prison for nine years with no further hearing or trial until he was 204 Human Rights Watch, trial observations, Case of Joseph Ndab akenga, Jurisdiction of Save Sector, Gisagara District, Southern Province, September 18, 2008. 205 Human Rights Watch interview with local government official Save Sector, Gisagara District, Southern Province, September 18, 2008. 206 Human Rights Watch, trial observations, Case of Joseph Ndabake nga, Jurisdiction of Save Sector, Gisagara District, Southern Province, August 6, 2009. 207 Human Rights Watch interview with accused, Kigali, August 26, 2009. 208 Among those praising him was Rwandan Interior Minister Shei kh Musa Fazil Harerimana. See letter from Munyangabes wife to President Kagame Regarding the Case of Her Husband, July 31, 2009 (copy on file with Human Rights Watch). 209 Amnesty International, Rwanda: The Troubled Course of Ju stice: Tried, Acquittedand Still in Gaol, AI Index: AFR 47/11/00, April 2000, http://www.amnesty.org/en/library/info/AFR47/011/2000/en (accessed August 30, 2010).

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Justice Compromised 54 finally brought before gacaca in November 2008. The trial court concluded that the case was identical to the one decided in the conven tional courts and dismissed the charges.210 Instead of being released, however, Munyangabe was brought before a neighboring gacaca jurisdiction and charged with the same crimes. Munyangabe asserted that the case should be dismissed on double jeopardy grounds, but the court disagreed and proceeded to try him. One of th e most flagrant irregularities at trial was the presiding judges coercion of a man into making a written statement against the accused. After a local RPF representative testified that Munyanga bes former driver told him that the accused had attended a secret genocide planning meeting, the court summoned the driver to testify. The driver denied having ever made the statem ent, adding that the RPF representative and a second man had unsuccessfully tried to pr essure him into accusing Munyangabe. The presiding judge immediately scolded the witness and threatened to arrest him for perjury. When the witness continued to insist that he had never made the statement, the judge adjourned the proceedings and told the witness to go home and think about the consequences of giving false testimony. The following day, the witness reappeared and reluctantly gave the court a written statement implicating the accused in the meeting in question. The court convicted Munyangabe largely on the basis of this statement and sentenced him to life imprisonment with special provisions.211 On appeal, Munyangabe argued that he had been unlawfully convicted of the same crimes for which a conventional court had acquitted him. Th e court rejected this argument and found that the alleged genocide planning meeting constituted a new accusa tion. Munyangabe pointed out that the issue of such meetings had been raised in the conventional court case but had been dismissed. He also noted that the new allegati on had not been raised during the national information gathering phase of gacaca and that the new witness had contradicted himself several times. He asked the court to summon the driver, but the court refused and upheld Munyangabes conviction.212 During the course of the appeal, two genocide survivors were intimidated and arrested for trying to defend Munyangabe. The two men showed up to testify on the first day, but the hearing was postponed. Shortly after the local co mmunity dispersed that day, police arrested the two men without explanation and kept them in detention overnight. The local prosecutor 210 Human Rights Watch, trial observations, Jurisdiction of Mururu Sector, Rusizi District, Western Province, November 27, 2008. 211 Human Rights Watch telephone interview with NGO ob server who monitored the trial, December 10, 2010. 212 Human Rights Watch, trial observations, Jurisdiction of Shangi Sector, Nyamasheke District, Western Province, August 24-26, 2009, September 1-5 and 14-15, 2009.

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55 Hum an Rights Watch | May 2011 secured their release the following day after other survivors in the community complained about the arrests.213 Despite the harassment, both men still decided to testify. The first man faced hostility from the judges but had no other problems during his testimony. The second man testified that the civil party ha d bribed other survivors to accuse Munyangabe and that Munyangabe had not committed any wr ongdoing during the genocide. After the man left the hearing, the civil party (a woman) accu sed him of having tried to intimidate her. The court ordered the man to be arrested and brought back to gacaca for questioning. Meanwhile, the judge scolded other survivors present at th e hearing and reminded them of the need to speak with one voice and not fight with each other.214 He threatened to send anyone else criticizing the civil party to jail for perjury. Soldiers went to the second witnesss house and brought him back to gacaca. By the time they returned, how ever, the days proceedings had ended and the man was detained. After strong protests from other local survivors at the scene, the presiding judge ordered his release.215 The gacaca jurisdiction denied Munyangabes re quest for revision in November 2009.216 Munyangabe then wrote to the SNJG to complain but had not received a response at the time of writing. Munyangabes case is also discussed in connect ion with the right to have adequate time to prepare a defense and the risks faced by defense witnesses. The right to be present at ones own trial Rwanda allows trials in absentia, that is trials without the accused present.217 The justification for such trials is that individuals should not be able to evade justice by not showing up for their trial. While this practice is not permitted in common law systems, it is standard procedure in civil law countries and has generally been accepted as lawful under international law provided certain procedures are followed.218 The UN Human Rights Committee has emphasized two procedural requir ements: first, the accused should be given 213 Human Rights Watch interviews with local residents, Shangi Sector, August 25, 2009. 214 Human Rights Watch, trial observations, Jurisdiction of Shangi Sector, Nyamasheke District, Western Province, September 14, 2009. 215 Human Rights Watch interviews with local resi dents, Shangi Sector, September 14-15, 2009. 216 Letter Denying Revision, signed by the President of Gihundwe Sector General Assembly of Gacaca Jurisdictions, November 25, 2009 (copy on file with Human Rights Watch). 217 Rwandan Code of Criminal Procedure, arts. 155-156. 218 In France, for instance, Article 410 of th e Code of Criminal Procedure states that an accused who fails to appear shall be tried as if he were present so long as he received proper notice of proceedings agai nst him. French Code of Criminal Procedure http://www.easydroit.fr/codes-et-lois/article-410du-Code-de-procedure-penale/A58199, art. 410.

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Justice Compromised 56 proper notice of the trial; and second, the cour t should strictly protec t all of the due process rights of an accused.219 Over the past few years, gacaca courts have prosecuted hundreds, and perhaps thousands, of individuals in their absence.220 This was not necessarily in breach of the law, but given that gacaca courts often fail to protect other basic rights set forth above, trials in absentia are particularly problematic. Politically motivated in absentia trials In a number of apparent politically-motiva ted cases, individuals suddenly learned that gacaca courts had convicted them in absentia. Some cases involved allegations that arose quite recently, and which were not raised duri ng the national information gathering phase (2002-2004). Others appear to have resulted fr om Rwandan judicial officials seeking to gain custody over a suspect living abroad. For exam ple, in 2006 the ICTR acquitted Emmanuel Bagambiki, the former Cyangugu prfet, of genocide.221 Rwandan judicial officials called the acquittal unforgiveable and ridiculous.222 Soon after, Rwandan prosecutors brought rape charges against Bagambiki, which ICTR prosecut ors had considered but rejected due to lack of evidence (Rwandan judicial authorities did no t protest against this decision at the time). A gacaca court convicted Bagambiki of rape in absentia in October 2007 and has since sought his extradition from Belgium, where he is living in exile.223 Rwandan lawyer and former ICTR defense inve stigator Lonidas Nshogoza found himself accused in gacaca just as the ICTR contemplated bringing a case against him for bribing a prosecution witness to change his testimony be fore the tribunal. When the allegations first emerged in June 2007, Rwandan police detained Nshogoza and charged him with corruption 219 Human Rights Committee General Comments, art. 14, para. 11, www.unhchr.ch/tbs/doc.nsf/0/bb722416a295f264c12563ed0049dfb d?Opendocument (accessed August 31, 2010). Article 14: When exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defence is all th e more necessary. 220 Gacaca courts generally found individuals who did not appear fo r their trial guilty but occasionally acquitted accused persons. 221 Prosecutor v. Em manuel Bagambiki et al., ICTR, Case No. ICTR-97-36, Judgment (Trial Chamber), February 25, 2004; affirmed on appeal, Judgment (Appeals Chamber), July 7, 2006. 222James Munyaneza, Rwanda plots Bagambikis re-arrest, The New Times, http://www.rwandagateway.org/article.php3? id_article=2215 (accessed May 16, 2008); La Ville des acquitts du TPIR reste divise, Hirondelle News Agency, February 10, 2006, http://fr.hirondellenews .com/content/view/3940/26 (accessed October 7, 2010). 223 Belgium investigates acquitted ex-Rwandan governor Bagambiki, Hirondelle News Agency, June 3, 2008, http://www.hirondellenews.com/content/view/6096/26 (accesse d October 7, 2010); Rwanda intends to prosecute exGovernor Emmanuel Bagambiki for rape, Hirondelle News Agency, March 8, 2006, http://www.hirondellenews.com/content/vie w/3516/26 (accessed October 7, 2010).

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57 Hum an Rights Watch | May 2011 and genocide denial.224 He remained in prison without trial for more than six months before being released on bail in January 2008.225 Meanwhile, in December 2007, the district coordinator in his native area of Mahembe sent local gacaca judges instructions to open a file against him. They obliged, rapidly assemb ling a file, charging him with involvement in the deaths of four of his sisters children,226 and setting a trial date for January 22, 2008 which was postponed by a week after Nshogoza did not appear.227 Three gacaca judges told Human Rights Watch separately that they were surprised to hear of Nshogozas case because all gacaca trials in the sector had offi cially been completed. Two of the judges reported that the dist rict coordinator sent a letter on January 29 directing them to immediately decide on the case and to issue a default judgment on February 7 if the accused did not appear.228 One of these judges and a local gove rnment official told Human Rights Watch that they believed the case to be unfo unded, a position echoed by several community members who lived in the area in 1994 The trial court acquitted Nshogoza in absentia, a decision affirmed on appeal.229 On February 8, 2008 Nshogoza surrendered himself to the ICTR after the court issued a warrant for his arrest.230 The ICTR convicted Nshogoza for contempt of court for meeting with a prosecution witness in violation of the tribunals protection orders, and for disclosing protected information about the witness to a third party, but acquitted him of the corruption charge. The ICTR sentenced hi m to 10 months imprisonment but released him as he had already spent more than a year in detention. 231 224 Human Rights Watch, trial observations, Prosecutor v. Lonidas Nshogoza, Tribunal of First Instance, Gasabo District, October 17, 2007; No False Testimony in the Rukundo Trial, Hirondelle News Agency, October 11, 2007, http://www.hirondellenews.com/content/view /10072/281 (accesse d March 14, 2010). Nshogoza appeared before the trial court of Gasabo on November 19, 2007 and was granted bail pending information to be sent from the ICTR to Rwandan judicial officials. See also An ICTR Investigator Has Been Detained in Rwanda for the Past Six Months, Hirondelle News Agency, January 3, 2008, http://www.hirondellenews.com/content/view/10452/26 (accessed March 14, 2010). 225 Defense Investigator Surrenders to UN Tribunal in Arusha, Hirondelle News Agency, February 8, 2008, http://www.hirondellenews.com/content/vie w/10595/26/ (accessed October 11, 2010). 226 Human Rights Watch interview with two gacaca officials, Mahembe, January 29, 2008. According to the witnesses, the file was opened on December 16, 2007. 227 Human Rights Watch, trial observations, Case of Lonidas Nshogoza, Jurisdiction of Mahe mbe Sector, Muhanga District, Southern Province, January 29, 2008. 228 Human Rights Watch interviews with gacaca judges, Mahembe, January 29, 2008. The letter, seen by Human Rights Watch, read: Judge this file as quickly as possible. If the accu sed does not appear on 29/1/2008, send another summons for 5/2/2008. If he doesnt appear on that date, judge him by default on Thursday 7/2/2008. 229 Human Rights Watch, trial observations, Case of Lonidas Nshogoza, Jurisdiction of Mahembe Sector, Muhanga District, Southern Province, February 7, 2008; Human Rights Watch email correspondence with Allison Turner, Nshogozas legal counsel at the ICTR, March 17, 2010. The appeals court in Mahembe rendered its decision on May 6, 2008. 230 Defence Investigator Surrenders to UN Tribunal in Arusha, Hirondelle News Agency, February 8, 2008, http://www.hirondellenews.com/content/vie w/10594/57 (accessed March 14, 2010). 231 The Prosecutor v. Lonidas Nshogoza, ICTR, Case No. ICTR-07-91-T, Judgment (Trial Chamber), July 7, 2009, affirmed on appeal, Judgment (Appeals Chamber), March 15, 2010.

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Justice Compromised 58 The case of Lopold Munyakazi is a striking ex ample of an apparently politically-motivated genocide case. In September 2008, Munyakazi, then living in the United States, faced allegations in gacaca proceedings at exactly the same time the Rwandan government sought an international warrant for hi s arrest for the second time.232 Soon after the genocide, Munyakazi spent time in prison on genocide-related charges, but in 1999 the national prosecutors office ordered his release for lack of evidence. He went on to work for a national university in Rwanda, a position for which he required and obtained certificates of good standing from several government authorities. In July 2004, while he was attending a teaching conference in the United States, friends cont acted him to warn him about worrying rumors circulating about him in Rwanda. Munyak azi decided not to return to Rwanda.233 Soon after, a parliamentary commission accused himand hundreds of other persons and organizations of divisionism.234 He sought asylum in the United Stat es and began teaching at a university in Maryland.235 In October 2006, Munyakazi gave a faculty speech calling into question official Rwandan discourse on the genocide, which attracted the Rwandan authorities attention.236 One month later, the Rwandan national prosecut ors office issued an international arrest warrant for Munyakazi on charges of genocide and genocide denial.237 In the fall of 2008, the Rwandan prosecutors office renewed efforts to secure Munyakazis extradition and teamed up with the American television channel NBC (and its To Catch a Predator series) to confront Munyakazi in the United States.238 Around the same time, in September 2008, the Rwandan prosecutors offi ce issued a second warrant for his arrest,239 232 Human Rights Watch telephone interview with Lopold Munyakazi, October 21, 2009; Human Rights Watch email correspondence with Munyakazi, April 5, 2010; Human Rights Watch investigation in Rwanda between December 2008 and February 2009. 233 Human Rights Watch email corresponde nce with Munyakazi, April 5, 2010. 234 Government of Rwanda, Parliamentary Report on Genocide Ideology, June 2004, p. 91. 235 Brian Stelter, On Trail of War Cr iminals, NBC News is Criticized, New York Times, February 10, 2009, http://www.nytimes.com/2009/02/11/business/medi a/11network.html (accessed October 7, 2010). 236 Andrew Rice, Doubt, A Professor, A Genocide, and NBC's quest for a prime-time hit, New Republic, August 12, 2009, http://www.tnr.com/article/politics/doubt (accessed October 7, 2010); Prof Munyakazi' s U.S friends determined to save him, Rwanda News Agency, March 30, 2009, http://rnanews .com/index.php?option=com_content&view=article&id=1106:profmunyakazis-us-friends-determined-to-save-him-&Itemid=47 (accessed on October 7, 2010). 237 International Arrest Warrant on Behalf of the Rwandese People, dated November 10, 2006 (copy on file with Human Rights Watch). Prof Munyakazi's U.S friends determined to save him, Rwanda News Agency, March 30, 2009, http://rnanews.com/index.php?option=com _content&view=article&id=1106:prof-mun yakazis-us-friends-determined-to-savehim-&Itemid=47 (accessed on October 7, 2010). 238 Brian Stelter, On Trail of War Cr iminals, NBC News is Criticized, New York Times, February 10, 2009, http://www.nytimes.com/2009/02/11/busin ess/media/11network.html (accessed Octobe r 7, 2010); Andrew Rice, Doubt, A Professor, A Genocide, and NBC's quest for a prime-time hit, New Republic, August 12, 2009, http://www.tnr.com/article/politics/ doubt (accessed October 7, 2010). 239 International Arrest Warrant on Behalf of the Rwandese People, dated Septem ber 18, 2008 (copy on file with Human Rights Watch); Prof Munyakazi's U.S friends determined to save him, Rwanda News Agency, March 30, 2009, http://rnanews.com/index.php?option=com _content&view=article&id=1106:prof-mun yakazis-us-friends-determined-to-savehim-&Itemid=47 (accessed on October 7, 2010).

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59 Hum an Rights Watch | May 2011 and relatives in Rwanda received a summons for him to appear before gacaca.240 The gacaca trial began a year later in late 2009 in Muny akazis absence, but the case appears to have been dismissed later at the direction of the SNJG.241 Human Rights Watch could not confirm the SNJGs involvement and was unable to find out the justification for the dismissal. Other in absentia trials The story of Jean-Npomuscne Munyangabe In November 2007, Jean-Npomuscne Munyanga be learned that he had been convicted of genocide and sentenced to 18 years imprisonment in a gacaca court in southern Rwanda. At the time, he was working for the UN World Food Program in Chad (where he had been since 2005). Neither he nor his family, who still resi ded in Rwanda, had been notified of the case against him, even though his employment at the time was well known in the area.242 Confident of his innocence, Mu nyangabe took leave from his post in Chad and returned to Rwanda to challenge the conviction.243 He filed his written appeal in January 2008. He was arrested and held in police custody for ne arly three months until his case was heard.244 A final verdict was handed down in July 2008 after a series of flawed gacaca proceedings, discussed below. Munyangabe was convicted of involvement in the death of two Tutsi who had sought refuge at his familys house and was sentenced to 19 years imprisonment.245 The trial revealed that rather than being responsible for killings during the genocide, Munyangabe and his family had actively sought to protect Tutsi from the killers in 1994 by hiding them at their house. The two victims ca me to their house seeking refuge but changed their mind when they found other Tutsi alread y hiding there and feared being discovered by local militia. The victims convinced Munyangabes father to help them flee towards Burundi, but the vehicle was intercepted along the way an d both were killed. Munyangabes father was killed shortly after the genocide upon returning to Rwanda. 240 Case of Lopold Munyakazi, Summons of Lopold Munyakazi dated September 8, 2008 for appearance on October 7, 2008, no jurisdiction cited. 241 Case of Lopold Munyakazi, undated summo ns of Lopold Munyakazi for appearance on October 22, 2009, Jurisdiction of Kayenzi Sector, Kamonyi District, Southern Province; Human Rights Watch email correspondence with Munyakazi, April 5, 2010. 242 Human Rights Watch interview with Jean-Npomuscne Munyangabe, Mpanga prison, February 6, 2008; Human Rights Watch interview with gacaca official, Nyanza, March 18, 2008. One official told Human Rights Watch that it was well known that Munyangabe worked for the UN in Chad but could not explain why authorities made no attempt to notify him or his family. 243 Human Rights Watch interview with Munyangabe, Mpanga prison, February 6, 2008. 244 Ibid. See also Human Rights Watch interview with Munyangabes wife, Butare, April 18, 2008; Human Rights Watch interview with district coordinator, Nyanza, May 7, 2008. 245 Human Rights Watch, trial observations, Jurisdiction of Kibilizi Sector, Nyanza District, Sout hern Province, March 18, 25 and April 4, 2008.

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Justice Compromised 60 Seven witnesses, including four neighbors, and three genocide survivors who had taken refuge at his familys house testified in Munyangabes defense. One relative of the victim claimed she saw Munyangabe traveling with his father and th e victims that evening before the killings took place, but her testimony was contradicted by several other witnesses. Others accusing Munyangabe said merely that he was friends wi th a neighboring family that committed crimes during the genocide and that he must have co mmitted genocide too. One person speculated that Munyangabe had left his studies in Butare and returned to his familys house in 1994 to commit crimes. All were family members of the victim, and none were eyewitnesses to the events in question. The gacaca court acquitted Munyangabe and ordered hi s immediate release on April 4, 2008. The district coordinator delivered the releas e order to the prison where Munyangabe was detained, but later returned to retrieve it and prevented his release. The civil party appealed the acquittal, and Munyangabe was kept in pris on, allegedly so that he would not flee the country.246 The appeals trial, which began the following mont h, opened with the presiding judge refusing to disqualify himself despite allegations that he was a close friend of the civil party in the case. Three additional hearings took place, during which the presiding judge acted in a biased manner, took decisions without consulting other judges, reacted angrily to statements made by the accused, interrupted and detained at leas t three defense witnesses on allegations of perjury, and tried to manipulate the written record of proceedings.247 On June 17, 2008, the trial was suspended indefinitely. The SNJG stepped in to change the jurisdicti on hearing the case, but the newly appointed bench sat for just a single session and convicted Munyangabe despite the absence of new evidence. It sentenced him to 19 years imprisonment.248 In May 2010 the SNJG denied Munyangabes request for revision, le aving him with no other recourse.249 At the time of writing, he remains in prison. Munyangabes case is also discussed in connectio n with the right not to be arbitrarily detained and the right to impartial justice. 246 Human Rights Watch interview with district coordinator, Nyanza, May 7, 2008. 247 Human Rights Watch, trial observations, Jurisdiction of Kibili zi Sector, Nyanza District, Southern Province, May 20 and June 10 and 17, 2008. The judges efforts to alter the written record was opposed by the other judges. 248 Human Rights Watch, trial observations, Jurisdiction of Kibilizi Sector, Nyanza District, Southern Province, July 27, 2008. 249 Letter Ref: 2422KE/MD/20010 Denying Revision Signed by SNJG Executive Secretar y Domitilla Mukantaganzwa, May 20, 2010 (copy on file with Human Rights Watch).

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61 Hum an Rights Watch | May 2011 In some cases, private grievances helped explai n the decision to hold trials in the absence of the accused. The above case of Jean-Npomuscne Munyangabe is one example, with the civil partyan influential family in the south with several prominent family members living and working in Kigaliusing the accuseds pres ence abroad to secure a judgment without him or his family even knowing about the case.250 Not all gacaca trials in absentia were ill-founded or brought for political or personal reasons. In some cases, the accused fled the country or went into hiding, apparently to evade justice.251 In other cases, individuals chose not to appear because they thought they would not receive a fair trial or feared they might be tried twice or charged with additional accusations, particularly during the ne w information gathering phase in 2009.252 However, the authorities have also publ icly accused large numbers of Rwandans, who may have left the country for legitimate reasons, of evading justice.253 For example in the late summer and early fall of 2009, hundreds of Rwandans cr ossed the border to Burundi. Human Rights Watchs interviews with a number of those wh o fled to the Kirundo and Ngozi provinces of Burundi in October 2009 suggested that many may have had a credible fear of persecution not prosecutionin Rwanda.254 Similarly, Rwandan refugees interviewed by other NGOs in early 2010 in Uganda said that they had left in part because they feared that the Rwandan authorities and private individuals were manipulating gacaca courts for their own purposes.255 Human Rights Watch is not in a position to ascertain whether some of these individuals may have participated in the genocide or may have gacaca cases pending; however, it cannot be assumed, as the governme nt has done, that most or all were seeking to evade justice simply because they left Rwanda. 250 Human Rights Watch investigation between February and August 2008, including gacaca trial observation and interviews with local residents. 251 Human Rights Watch interview with colleague of accused man, Kigali, September 9, 2010; Human Rights Watch interview with persons knowledgeable about case, Kabacuzi Sector, Mu hanga District, Southern Province, August 15, 2009; Human Rights Watch interview with persons knowle dgeable about case, Zoko, June 22, 2006. 252 Human Rights Watch telephone interview with Burundian jour nalist, October 5, 2009; Human Rights Watch interview with staff members of the UN High Commission for Refugees, Geneva, Ju ly 7, 2010. See also Internatio nal Refugee Rights Initiative, Refugee Law Project, and Social Science Re search Council, A Dangerous Impasse: Rw andan Refugees in Uganda, Citizenship and Displacement in the Great Lakes Region, Working Paper No. 4, June 2010, http://refugeelaw project.org/other_reports.php, pp. 27-31. 253 Over 80 People Flee Rwanda as Gacaca Trials Begin, Hirondelle News Agency, Mar. 14, 2005, http://allafrica.com/stories/200503150079.html; Hundreds of People Fleeing the Gacaca Tribunal Towards the RDC, Hirondelle News Agency, April 17, 2007, http://www.hirondellenews.com/con tent/view/4364/135 (acces sed October 7, 2010). 254 Review Rwandans Asylum Claims, Human Rights Watch news release, October 16, 2009, http://www.hrw.org/en/news/2009/10/16/burundi-review-rwandans-asylum-claims; Stop Deporting Rwandan Asylum Seekers, Human Rights Watch news release, December 2, 2009, http://www.hrw.org/en/ news/2009/12/02/burundi-stopdeporting-rwandan-asylum-seekers. 255 International Refugee Rights Initiative, Refugee Law Project, and Social Science Research Council, A Dangerous Impasse: Rwandan Refugees in Uganda, pp. 27-31.

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Justice Compromised 62 The right not to be arbitrarily detained Rwandan and international law guarantees the right not to be arbitrarily arrested or detained.256 Rwanda has made important strides on this front over the past 17 years, but substantial concerns remain. In late November 2010, the NHRC Executive Secretary presented the Commissions annual human rights report to Parliament and noted continuing problems of arbitrary arrest and dete ntion and prolonged pre-trial detention.257 Under the ICCPR, victims of unlawful arrest or detention have a right to compensation.258 However, neither the gacaca laws nor the Criminal Procedure Code provide for such a right. In December 2003, the National Unity and Reconciliation Commission recommended the creation of a compensation fund for indivi duals who were wrongful ly imprisoned in the immediate aftermath of the genocide and for the heirs of innocent persons who had died in prison.259 The NHRC has made similar recommendatio ns, including in its 2010 presentation to parliament.260 The government has never taken step s toward awarding compensation for cases of wrongful detention and does not a ppear to be contemplating such measures following the NHRCs re cent recommendations. In the years immediately following the genoci de, tens of thousands of individuals were arrested on the basis of a single, unverified a ccusation of participation in the genocide and detained for prolonged periods (in many case s years) without any form of due process.261 By 1998, the prison population reached around 130, 000, with detainees held in life-threatening conditions.262 The enormous cost and logistics needed to support such a huge prison population were among the factors which led to the governments decision to launch gacaca for genocide cases.263 By 2008, following several thousand releases, prison overcrowding had eased. 256 Rwandan Constitution, art. 18; ICCPR, art. 9; ACHPR, art. 5. 257 Remarks of NHRC Executive Secretary Sy lvie Kayitesi Zainabo to Parliament, November 30 and December 1, 2010. 258 ICCPR, art. 9(5). 259 PRI, Eight Years OnA Record of Gacaca Monitoring in Rwanda, p. 46. 260 Remarks of NHRC Executive Secretary Sylvie Kayitesi Zainabo to Parliament, No vember 30 and December 1, 2010, and parliamentary debate that took place af ter her remarks. A number of parliament arians vehemently attacked the NHRCs proposal to indemnify individuals who have suffered illegal detention (including genocide suspects). 261 Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda, pp. 13-14; Human Rights Watch, Leave None to Tell the Story, p. 754; Human Rights Watch, Rwanda: The Crisis Continues, April 1, 1995, vol. 7, no. 1, http://www.hrw.org/legacy/reports/1995/Rwanda.htm, pp. 5-6. 262 Human Rights Watch, Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda, p. 10.; Amnesty International, Annual Report 1999, http://www.amnes tyusa.org/annualreport.php?id=ar&yr=1 999&c=RWA (accessed October 26, 2010); International Crisis Group, International Criminal Tribunal fo r Rwanda: Justice Delayed, Africa Report No. 30, June 7, 2001, http://www.crisisgroup.org/en/ regions/africa/central-africa/rwanda/030-intern ational-criminal-tribunal-for-rwanda-justicedelayed.aspx (accessed October 26, 2010), p. 33. 263 Government of Rwanda, Report on the Reflection Meetings Held in the Offi ce of the President of th e Republic from May 1998 to March 1999 (Kigali: Office of the Presiden t of the Republic, 1999), p. 58.

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63 Hum an Rights Watch | May 2011 Today, the prison population has stabilized at just over 60,000, which is still well above the full capacity of the countrys prisons.264 Nearly two-thirds of the prison population has been convicted of genocide-related charges.265 Prison conditions remain harsh. In February 2011, approximately 130 persons remain ed in pre-trial detention on genocide-related charges, some having already spent many years in prison.266 Over recent years, the authorities have introduc ed a number of positive steps to reduce the risk of arbitrary detention and to ensure that prisoners who have served their full sentence are released. In 2004, changes to the Criminal Procedure Code gave judges habeas corpus powers to compel police and prosecutors to bring to court detainees who may be illegally held. The changes also authorized judges to punish state agents responsible for arbitrary detention, but the detailed sanctions available to judges have yet to be set out in a revised penal code. The 2004 changes also specified that detainees must initially be held at police brigades, making it easier for rela tives and others to locate them.267 Arbitrary arrest and detention remain a pr oblem in Rwanda. Human Rights Watch came across a number of cases in which police arrested persons without a legal basis and detained them for several days. In some cases, police detained accused persons before or after gacaca trials without a court order. For exampl e, in a 2006 case in the north of the country, police arrested a presidential guar d officer as he attended the funeral of his grandfather. They held him in the district coor dinators office for two days until his trial, guarded by members of the local defense forces (LDF), the government-sponsored paramilitary forces that patrol local communities.268 Police arrested another man in June 2008 and detained him for three days until his trial, at which time he was convicted.269 In the western part of the country, police arrested another man in August 2008 and held him for five days pending his trial.270 264As of February 28, 2011, the total prison po pulation was 61,678 persons. Statistics provided by the National Prison Service in March 2011. 265 As of February 28, 2011, there were 39,887 persons incarcer ated on genocide convictions. Statistics provided by the National Prison Service in March 2011. See also Over 60,000 Prisoners in Rwandan Jails, Two Thirds Genocide Suspects, Hirondelle News Agency, February 3, 2011, http://www.hirondellenews.com/content/view/14008/332 (accessed February 15, 2011). 266 As of February 28, 2011, there were 130 persons detained pendi ng trial on genocide-related ch arges. Statistics provided by the National Prison Service in March 2011. 267 Rwandan Criminal Procedure Code, art. 89. Despite this provis ion, detention in secret locati ons occurs occasionally, most often in politically sensitive or military cases. Human Rights Wa tch, interview with person detained in an unrecognized, illega l location for more than two weeks, Kigali, August 19, 2010. 268 Human Rights Watch, trial observations, Case of Clestin Nzab anita, Jurisdiction of Zoko Se ctor, Gicumbi District, Northern Province, September 6, 2006. 269 Human Rights Watch interview with relative of Prudence Nsabimana, Kigali, June 9, 2008. 270 Human Rights Watch, trial observations, Case of Evariste Mpam bara, Jurisdiction of Gashali Sector, Karongi District, Western Province, August 19, 2008.

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Justice Compromised 64 Human Rights Watch also documented cases where gacaca courts ordered the detention of accused persons or witnesses without establishing that the person intended to flee or might cause harm to others or himor herself if the person remained at liberty. In April 2010, a gacaca court in the southern part of the countr y ordered a man attending an appeal hearing against his acquittal to be detained pending co mpletion of proceedings two days later (when he was convicted).271 Human Rights Watch also documented a handful of cases in which individuals were kept in detention despite being acquitted. The case of Jean-Npomuscne Munyangabe, discussed above, illustrates the problem.272 Similarly, in February 2008, a gacaca court acquitted Justin Nsengimana of charges of distributing arms, carrying an illegal weapon, and rape during the genocide.273 He remained in Butare prison for two years on the grounds that he had a category 1 case pending against him in the conventional courts. However, Nsengimana was never brought before a conventional court. Instead, in February 2010, he faced new accusations in the same gacaca court which had tried and acquitted him on the earlier charges.274 The court convicted him of the same two arms charges and of having part icipated in killings in Butare and sentenced him to life imprisonment with special provisions.275 In another case, Viateur Munyandekwe was acquitted in gacaca three times: first on August 26, 2007, on accusations of having failed to a ssist a neighbor in danger and of participating in killing a man;276 then on January 18, 2009 of accusations of rape;277 and finally on March 17, 2010, on the same accusations of having killed a man.278 However, he remained in detention throughout all three trials, and was fi nally released in 2010 after more than 31 months in detention.279 271 Human Rights Watch, trial observations, Case of Emmanuel Nkurunziza, Jurisdiction of Mugina Sector, Kamonyi District, Southern Province, April 3, 2010. 272 See above, section VI, The stor y of Jean-Npomuscne Munyangabe. 273 Human Rights Watch, trial observations, Case of Justin Nsengi mana, Jurisdiction of Gishamvu Sector, Huye District, Southern Province, February 16, 2008. 274 Distribution of arms had been one of the charges in Nsengimanas original case heard in 2008. 275 Human Rights Watch, trial observations, Case of Justin Nsengi mana, Jurisdiction of Gishamvu Sector, Huye District, Southern Province, February 19-20, 2010. 276 Human Rights Watch, trial observations, Case of Viateur Muny andekwe, Jurisdiction of Cyahafi Sector, Nyarugenge District, Kigali, August 26, 2007. 277 Human Rights Watch interview with acquaintance of Munyandekwe, Kigali, February 2, 2009. 278 Human Rights Watch telephone interview with NGO observer of trial proceedings, February 22, 2009; Human Rights Watch telephone interview with acquaintance of Munyandekwe, February 22, 2009. 279 Human Rights Watch interview with person know ledgeable about the case, Kigali, June 21, 2010.

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65 Hum an Rights Watch | May 2011 Differences in Judicial Standards between Conventional Courts and Gacaca Other differences between Rwandas conventional justice system and gacaca courts relate to judges qualifications and the legal standa rds applied in cases. In opting for the gacaca system, the Rwandan authorities made compromis es which they believed were necessary to accelerate the resolution of cases and to avoid cases getting bogged down by legal formalities. However, the absence of adequate safeguards led to serious irregularities. Judges: qualifications, training, remuneration and removal It would have been impossible to staff the more than 12,000 gacaca courts with legally trained professionals. The war and genocide ha d devastated the judicial system, with only 237 judges able to resume work in August 1994 out of more than 600 judges in service before the genocide.280 While the number of judges had mo re than tripled by 1996, it was still insufficient to deal with the huge caseload of genocide-related cases.281 Consequently, as part of the decision to move these cases to gacaca, gacaca judges (inyangamugayo) were to be elected by local communities and would be trained to handle complex cases and to uniformly apply legal standards.282 Qualifications of gacaca judges In October 2001, the population elected approximately 259,000 laymen and women to serve as gacaca judges in genocide cases.283 The first gacaca law, adopted in 2001, established the criteria for the candidates: judges must be at least 21 years old, persons of integrity within their community, and ordinary citizens.284 Persons of integrity were defined as individuals with high moral character who had not participated in the genocide, who did not 280 United Nations High Commissioner for Human Rights Field O ffice for Rwanda, The Administration of Justice in PostGenocide Rwanda, HRFOR/Justice/June 1996/E, http://repos itory.forcedmigration.org/show _metadata.jsp?pid=fmo:3105 (accessed March 15, 2010). 281 The Rwandan government placed the number of judges in 1996 at 841. Remarks by He ad of the SNJGs Legal Section, Gratien Dusingizimana, at National Unity and Reco nciliation Week Conference, Kigali, Decemb er 9, 2009. The power point presentation featured at the conference can be found on the SNJG website under the heading Gacaca Jurisdictions: Achievements, Problems, and Future Prospects, http://www.inkiko-gacaca.gov.rw/En/EnIntrod uction.htm, p. 4 (accessed March 15, 2010). 282 Some candidates appear to have been pre-selected in advance of the elections. S ee PRI, PRI Research on Gacaca Report, Rapport I: Gacaca Jurisdictions and its Preparations, July-December 2001, January 2002, http://www.penalreform.org/files/rep-ga1-2002-preparations-en_0.pdf (a ccessed December 4, 2010), pp. 34-35. 283 PRI, Eight Years OnA Record of Gacaca Monitoring in Rwanda p. 29. In December 2009, only 169,442 gacaca judges remained in service. Remarks by Head of the SNJGs Legal Sectio n, Gratien Dusingizimana, at Na tional Unity and Reconciliation Week Conference, Kigali, December 9, 2009. The power point presen tation featured at the conference can be found on the SNJG website under the heading Gacaca Jurisdictions: Achievements Problems, and Future Prospects, http://www.inkikogacaca.gov.rw/En/EnIntroduction.htm, p. 23 (accessed March 15, 2010). 284 2001 Gacaca Law, arts. 10-11; 2004 Gacaca Law, arts. 14-15. Judges cannot be involved in local or national government administration, politics or be a leading memb er of a political party, the police or mi litary, or the judiciary. However, they m ay be elected once they have resigned from these positions.

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Justice Compromised 66 hold sectarian or divisionist beliefs, and who had not been sentenced to more than six months imprisonment.285 At the time of their election in October 2001, a significant number of gacaca judges had not finished primary school, although those at district and province levels tended to have a higher level of education.286 Similarly, the majority of judges at the cell and sector levels were farmers, whereas a large number of judges at the higher levels were teachers or civil servants.287 Women were well-represented amongst gacaca judges but remained in the minority.288 Judicial training In April and May 2002, gacaca judges attended six full-day compulsory training sessions around the country (spread over three weeks), which were led primarily by magistrates and law students.289 Each group of 70 to 90 judges received instruction on the basic principles of the gacaca law, management skills, ethics, and trauma.290 Given the low education and literacy levels of many judges, and th e complexities and ambiguities of the gacaca law, it is difficult to see how such training could have b een sufficient to prepare the judges to decide genocide-related cases.291 The Supreme Court issued a gacaca manual for judges, which focused primarily on procedural matters, with little explanation of the material elements that need to be proven in order to convict a person, of what weight should be gi ven to different forms of evidence, and of the applicable standards of proof.292 The U.S. Justice Departments resident legal advisor in Rwanda expressed concerns at the time that judges and prosecutors who were providing 285 2001 Gacaca Law, art. 10; 2004 Gacaca Law, art. 14. Sectarianism and divisionism are terms vaguely defined under Rwandan law and often used interchangeably to refer to the sp reading of ideas that encourage ethnic animosity between the countrys Tutsi and Hutu populations. 286 PRI, PRI Research on Gacaca Report, Rapport I: Gacaca Jurisdictions and its Preparations, July-December 2001, January 2002, http://www.penalreform.org/files/rep-ga1-2002-preparations-en_0.pdf (accessed December 4, 2010), p. 36. According to the Belgian Technical Cooperations, 92.7 percent of gacaca judges were farmers and 15.4 percent of them were illiterate. Belgian Technical Cooperation, Report on the Living Conditions of Inyangamugayo, November 2005 (copy on file with Human Rights Watch). 287 PRI, PRI Research on Gacaca Report, Rapport I: Gacaca Jurisdictions and its Preparatio ns, July-December 2001, January 2002, http://www.penalreform.org/files /rep-ga1-2002-preparations-en_0.pdf (a ccessed December 4, 2010), p. 36. 288 Ibid. 289 Amnesty International, Gacaca: A Question of Justice, AI Index: AFR 47/007/2002, December 2002, http://www.amnesty.org/fr/library/asset/AFR47/007/2002/fr/c0b61832-d769-11dd-b02421932cd2170d/afr470072002en.html (accessed March 15, 2010). 290 Ibid. 291 African Rights, Gacaca Justice: A Shared Responsibility, Kigali, January 2003, pp. 4-12; PRI, Eight Years OnA Record of Gacaca Monitoring in Rwanda, p. 19. See also UN Human Rights Committee, Concluding Observations, May 7, 2009, UN Doc. No. CCPR/C/RWA/CO/3, http://www.ccprcentre.org/doc/ICCPR/AR/A_64_40(Vol%20I)_Eng.pdf (accessed December 10, 2010), para.17, p. 48; ASF, Monitoring Des Juridictions Gacaca, Phase de Jugement: Rapport Analytique No. 5, Janvier 2008-Mars 2010, http://www.asf.be/publications/Rwanda_Moni toringGacaca_RapportAnalytique5_Light.pdf (accessed March 21, 2011), pp. 19-21. 292 Cour Suprme, Dpartement des Juridictions Gacaca, Manuel explicatif sur la loi organique portant cration des juridictions gacaca, Kigali, October 2001, (copy on file with Human Rights Watch).

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67 Hum an Rights Watch | May 2011 legal training to individuals responsible for the actual training of the Gacaca judges were teaching vastly different inst ructions on categorization.293 The effects of divergent instructions soon became clear when various gacaca courts adopted strikingly different approaches to the categorization of offenses and decided case s involving similar facts very differently. In 2005, the SNJG also circulated simplified instruction booklets to assist judges with procedural matters but gave no additional guidance on who carries the burden of proof, how to evaluate evidence, or what level of proof is needed to convict a person.294 In 2006 and 2007, other short training sessions, usually consis ting of several days, we re also provided to judges.295 In 2008, after the decision to transfer most category 1 cases (the majority of which involved rape) to gacaca, the SNJG launched a new training program to sensitize judges to the issues involved in sexual violence cases. The prog ram targeted only judges selected to hear category 1 cases and consisted of two parts. First, SNJG officials travel ed around the country and instructed judges on how to handle proced ural aspects. Second, the Institute for Legal Practice and Development, with Dutch funding, sent a team of Rwandan lawyers and counselors around the country to conduct role -playing exercises with judges to sensitize them to trauma and other relevant issues in rape cases.296 Remuneration Gacaca judges do not receive any monetary remuneration for their services, although in recent years the SNJG gave them some in-kin d compensation as well as a small sum of money (discussed below). From the very begi nning, commentators expressed concern that requiring judges to take one or two days per week away from their own work for several consecutive years without adequate monetary compensation could be an incentive for corruption.297 Consequently, the Rwandan government tried to develop alternative means of compensating gacaca judges and of ensuring their commitment to the judicial process, including providing them with national health insurance and holding official ceremonies at the local community level to recognize their service.298 293 Letter from Pierre-Richard St. Hilaire, Resident Legal Advi sor to Rwanda, US State Department, to Rwandan Prosecutor General Gerald Gahima, March 26, 2002 (copy on file with Human Rights Watch). 294 SNJG, Le Guide Simplifi de la Procdure de Jugement," April 2005 (copy on file with Human Rights Watch). 295 Human Rights Watch telephone interviews with gacaca judges, March 16, 2010. 296 Human Rights Watch interview with SNJG Executive Secr etary Domitilla Mukantaganzwa, Kigali, September 9, 2008. 297See below, section VIII. 298 Martien Schotsmans, Belgian Technical Cooperation (BTC), Appui au Renforcement de lEtat de Droit et de la Justice au Rwanda, 2004, http://www.oecd.org/dataoecd/7/31/35110075.pd f (accessed March 21, 2011), pp. 24-25.

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Justice Compromised 68 In 2005, the SNJG and the Belgian Technical Cooperation proposed other ways to improve recognition of judges role, includ ing distribution of bicycles or goats, financial contributions to a local bank for microcredit loans, and a national day to celebrate the judges.299 The government rejected many of the proposals, but the SNJG distributed radi os to all judges in 2007 and bicycles to each jurisdiction in 2008. It also gave a one-time payment of 4,300 Rwandan francs (approximately US$7) each to all judges.300 Removal of judges By law, gacaca judges may be replaced if they repeated ly fail to appear at hearings without good reason, are convicted and receive a sent ence of six months' imprisonment or more, incite sectarianism, occupy po litical or government positions, or do anything that is incompatible with their role as persons of integrity.301 In 2005, the SNJG issued a special directive on the dismissal and replacement of judges.302 Initially, many judges were removed for allege d participation in the genocide. The Belgian Technical Cooperation reported that by December 2003, more than 650 gacaca judges and 15 district coordinators had been removed due to such allegations.303 The SNJG later reported that 45,396 judges had to be removed (and replaced) because of their alleged involvement in the genocide.304 In later years, a number of judges were also removed for corruption, namely soliciting and accepting bribes from a ccused persons or other interested parties. The SNJG executive secretary reported in January 2 008 that 56,000 ineffective or corrupt judges had been removed from service.305 In total, more than 92,000 judges (or 35 percent of the total number) have been removed since gacacas inception. The SNJG's resolve to remove allegedly corrupt or criminal judges was a positi ve move. However, the fact that such a move 299 SNJG and BTC, Enqute sur lAmlioration des Condit ions de Vie des Inyangamugayo, Kigali, November 2005. 300 Human Rights Watch telephone interviews with several gacaca judges, March 15, 2010. Acco rding to several judges, the selective nature of the distribution caused tensions. One judge, who requested anonymity, told Human Rights Watch that he was forced to sell his bicycle and share the proceeds with fellow judges in order to maintain peace. 301 2001 Gacaca Law, art. 12; 2004 Gacaca Law, art. 16. 302 Instructions No. 06/2005 of July 20, 2005 of the Executive Secretary of the National Service of Gacaca Courts on Dismissal of the Judge Inyangamugayo from the Gacaca Court Bench, Dissolution of a Gacaca Court Bench and Replacement of the Judges Inyangamugayo. 303 Martien Schotsmans, Belgian Technical Cooperation (BTC), Appui au Renforcement de lEtat de Droit et de la Justice au Rwanda, 2004, http://www.oecd.org/dataoecd/7/31/35110075. pdf (accessed March 21, 2011), p. 22. 304 Remarks by Head of the SNJGs Legal Sect ion, Gratien Dusingizimana, at National Unity and Reconciliation Week Conference, Kigali, December 9, 2009. The power point pr esentation featured at the conference ca n be found on the SNJG website under the heading Gacaca Jurisdictions: Achievements Problems, and Future Prospects, http://www.inkikogacaca.gov.rw/En/EnIntroduction.htm p. 8 (accessed March 15, 2010). 305 Gacaca Trials Could Also Try First Category Defendants, Hirondelle News Agency, January 4, 2008, http://www.hirondellenews.com/content/view/10460/309 (accessed March 17, 2010). Human Rights Watch was unable to ascertain the number of judges crim inally prosecuted for corruption.

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69 Hum an Rights Watch | May 2011 was necessary reinforced Rwandans lack of confidence in the courts and increased their concerns over judges impartiality. Burden and standards of proof Unlike the conventional justice system, gacaca courts have no procedures governing what evidence is admissible or inadmissible, who has the burden of proving that a person committed a crime, and what standard should be used to determine guilt. Certain general legal principles appeared to apply from Human Rights Watchs trial observations, such as an understanding that eyewitness testimony is prefer able to hearsay, that relatives testimony may be biased, and that corroboration by se veral witnesses makes an allegation more credible and reliable. Still, gacaca practices lacked uniformity or consistency. Hearsay testimony was routinely relied upon and given significant weight without taking steps to summon the person who made the original statement. Convictions were also often based on uncorroborated or inconsistent statements by witnesses, some of whom had no direct knowledge of the events in question. Burden of proof Because gacaca trials do not involve a prosecutor, at the beginning of a trial presiding judges announce the charges against the accu sed and provide a general overview of the allegations. The accused is then given the floor to provide information and set out his or her defense. Judges often ask follow-up questions. Then, witnesses to the events are called, with those testifying against the accused appear ing first, followed by any defense witnesses. The civil party, normally the victim or relati ves of the victim, usually makes a statement. Once the witnesses have been heard, the proc eedings are opened to the general population for statements or questions to anyone who has already spoken. Although the law requires that an accused be presumed innocent, in pr actice the burden has generally fallen on the accused to prove that he or she did not commit the alleged crime. The absence of a public prosecutor placed the burden of proof even more squarely on the accused. Many judges openly demonstrated hostility to the accused, made disparaging remarks or interrupted the testimony of the accused. Th e accused also had to bring his or her own witnesses to help defend him or herself against the allegations. If he or she was unable to find defense witnesses, the accused was usually co nvicted. Human Rights Watch documented a number of cases where courts convicted a person despite the fact that no witness testified against the person and only defense witnesse s exculpating the accused appeared at trial.306 306 Human Rights Watch, trial observations, Case of Joseph Ndab akenga, Jurisdiction of Save Sector, Gisagara District, Southern Province, September 11 and 18, 2008; Case of Emmanuel Nkurunzi za, March 30 and April 1-3, 2010, Jurisdiction of Gahogo

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Justice Compromised 70 Standard of proof Often, gacaca jurisdictions applied divergent standards of proof. The gacaca laws gave no objective guidance on how much weight to give to witness testimony, the necessary level of corroboration to establish facts, and the amount of evidence needed to convict a person. As a result, judges were left to subjectively decide on these matters. The only requirement under the 2004 Gacaca Law was that [j]udgments must be motivated and must be signed or marked by all members of the gacaca court.307 Gacaca judgments differ from regular court judgments in that they are not formal writte n opinions. Rather, they are short handwritten summaries (known as fiches de jugement) which are included in the register of minutes for each jurisdiction and are signed by the judges and the accused.308 Many judgments were not justified by reasoning to explain what evidence wa s relied upon or discredited in arriving at a decision.309 In some cases, even the charges that were retained or dismissed against the accused were missing from the judgment. Th ese deficiencies made the appeals process more difficult for accused persons, as well as for judges hearing the appeals. In 2004 the SNJG took some steps to assist judges in deciding cases and to ensure some degree of consistency between jurisdictions. It launched an initiative through which gacaca judges confronting particularly complex issues could ask legal experts for help.310 The SNJG had a Kigali-based team of experts who fielded telephone calls from jurisdictions throughout the country and who occasionally visited judges to discuss issues.311 Two areas that illustrate the ex tent of divergence in courts decisions are legal intent and witness credibility. The requirement of inten t, under which the court must establish the state of mind of the accused and conclude whether or not he or she intended to commit the alleged crime, understandably proved to be one of the most difficult concepts for judges to grasp.312 In order to convict a person for genoci de under Rwandan and international law, a court must find that the person intended to dest roy, in whole or in part, a national, ethnical, Sector, Muhanga District, Southern Province. Human Rights Wa tch, trial observations, Case of Symphorien Kamuzinzi, Jurisdiction of Nyakabanda Sector, Nyarug enge District, Kigali (with SNJG-appointed bench from Kimironko Sector, Gasabo District, Kigali), March 2 and 4, 2010. 307 2004 Gacaca Law, Art. 25. 308 SNJG, Simplified Guide to Trial Procedures, p. 13. 309 ASF, Monitoring Des Juridictions Gacaca, Phase de Jugement: Rapport Analytique No. 5, Janvier 2008-Mars 2010, http://www.asf.be/publications/Rwanda_Mon itoringGacaca_RapportAnalytique5_Light.pdf (accessed March 21, 2011), pp. 1718, 26-32. 310 2004 Gacaca Law, Art. 26. 311 Human Rights Watch interview with Head of the SNJGs Legal Section, Gratien Dusingizimana, Kigali, April 17, 2008. 312 PRI noted: [D]uring our interviews with judges [sic] a great many of them did not understand legal concepts such as intent, a key part of the definition of the crime of genocide. PRI, The Contribution of the Gacaca Jurisdictions to Resolving Cases Arising from the Genocide: Contributions, Limita tions and Expectations of the Post-Gacaca Phase, February 24, 2010, http://www.penalreform.org/files/Gacaca_final_2010_en.pdf (accessed March 21, 2011), p. 44.

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71 Hum an Rights Watch | May 2011 racial or religious group.313 If the intent requirement is not proven, a court should acquit the accused of the specific crime of genocide. In pr actice, however, judges rarely considered the issue of intent and almost never included it in the reasoning of judgments.314 The result is that many people were convicted of genocide without any proof that they intended to destroy, in whole or in part, the Tutsi ethnic group. Given that most gacaca cases involved genocide, the SNJG should have instructed judges on the need to consider the intent of the accused and should have provided detailed guidance on the issue. This issue proved particularly problematic when judges confronted the question of accomplice liability. Under the gacaca laws, an accomplice is someone who by any means, assisted to commit offenses and is punished to the same degree as the main perpetrator of the crime.315 However, the gacaca laws were silent on whether a person must intend to assist someone else in committing an offense before he or she can be called an accomplice, leaving the decision to the discretion of individual judges.316 Some courts held that individuals present at roadblocks where killin gs later occurred, or who were forced to participate in night patrols to ensure security in their area, were accomplices. Other courts required that persons be physically present when killings occurred or that they intended their actions to cause later deaths.317 Given that many individuals were obliged to pa rticipate in neighborhood patrols in 1994, the SNJG could easily have foreseen that the question of whether or not accomplices needed to have intended certain consequences would aris e in a significant number of cases. Yet the SNJG failed to provide guidance, even afte r it was made aware of judges divergent approaches by independent monitors such as AS F. More specifically, the SNJG should have told judges that a persons mere presence at roadblocks or any other crime scene was not enough to convict him or her of being an accomp lice and that they should require proof that 313 Genocide Law, art. 1 (incorporating the International Convention on the Prevention and Punishment of Genocide, art. 2). See also ICTR Statute, art. 2. Genocide is considered a specific intent crime, meaning that the person must have had a particular state of mind in addition to committing a physical act. 314 This issue also arose in the convention al courts, which often failed to require the prosecutor to prove that the accused intended his or her actions to destroy, in whole or in part, the Tutsi ethnic group. 315 2001 Gacaca Law, para. 53; 2004 Gacaca Law, para. 53; 1996 Genocide Law, art. 3. 316 Rwandan law requires that a person knowingly support a pers on in the commission of a crime in order to be found liable as an accomplice. Rwandan Penal Code, art. 91. The ICTR has a si milar legal standard and has held that mere presence of the accused at the scene of the crime is insufficient in itself to establish that he has aided and abetted the commission of the crimes unless it is shown to have a significant legitimizing or encouraging effect on the actions of the principal offender. Prosecutor v. Athanase Seromba, ICTR, Case No. ICTR-2001-66-I, Judgment (Trial Chamber), December 13, 2006, para. 308. In the case of genocide, the ICTR has further held that the accomp lice must have known of the principal perpetrators specific [genocidal] intent even if the accomplice did not himself intend to commit genocide. Prosecutor v. Athanase Seromba, ICTR, Case No. ICTR-2001-66-A, Judgment (Appeals Chamber), March 12, 2008, para. 56. 317 ASF, Monitoring of the Gacaca Courts, Judgment Phase: Analytical Report No. 3, October 2006-April 2007, http://www.asf.be/publications/Publication_rwanda_Rapport_analytique_GacacaIII_EN.pdf (accessed March 21, 2011), pp. 35-37.

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Justice Compromised 72 the persons actions clearly constituted assist ance in, or encouragement of, the commission of a crime. It was not until March 2007 that the SNJGs executive secretary finally stated publicly that a persons presence at a roadbloc k was not in and of itself enough to convict that person of a crime.318 No further guidance was provid ed on accomplice liability. Courts also regularly accepted hearsay inst ead of summoning the person who made the original statement or asking whether that person could appear as a witness. While hearsay evidence is allowed in many jurisdictions, including the conventional courts in Rwanda and many civil law jurisdictions in Europe, courts gene rally recognize that it is a secondary form of evidence which must be probed for its reliability. Gacaca courts did not appear to regularly make this distinction and instead often afford ed significant weight to hearsay statements. In the case of Jean-Npomuscne Munyangabe discussed above, a community member told the court that another man had told him, during an earlier gacaca hearing, that the accused had participated in an attack in April 1994. The presiding judge asked the man why the person who made the statement had not testified to this fact at the earlier hearing but did not ask whether the man could be brought before the court to testify and did not consider postponing the hearing to summon the man to appear.319 In other cases, courts accepted written testimonyusually in the form of hand written notesas reliable evidence without any meaningful discussion of whether the pers on who wrote the note could have appeared before the court to testify and be questioned by the judges and the accused. Courts also failed to verify the authenticity of such handwritten notes.320 In some cases, judges also struggled to assess the quality of testimony. At times, they failed to identify evident bias on the part of witnesses against one of the parties or failed to probe further when obvious inconsistencies arose with in a witness statement or between different witnesses. In the case of Pascal Habarugira, discussed above, the accused pointed out several inconsistencies in the testimony of two key witnesses at the appeals stage.321 He said he could provide the court with proof of the inconsistencies by presenting written judgments 318 Remarks of SNJG Executive Secretary Domitilla Mukantaganzw a, public meeting in Kigali, March 13, 2007. Mukantaganzwa stated that the SNJG had issued a directive to this effect which had been transmitted to local gacaca jurisdictions. 319 See above, section VI, The story of Jean-Npomuscne Munyan gabe. Human Rights Watch, trial observations, Case of JeanNpomuscne Munyangabe, Jurisdiction of Kibilizi Sector, Nyanza District, Southern Province, March 25, 2008. 320 Human Rights Watch, trial observations, Case of Thodore Munyangabe and Abb Aim Mategeko, Jurisdiction of Shangi Sector, Nyamasheke District, Western Province, September 5 a nd 14, 2009; Case of Justin Nsengimana, Jurisdiction of Gishamvu Sector, Huye District, Sout hern Province, February 20, 2010. 321See above, section VI, The story of Pascal Habarugira.

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73 Hum an Rights Watch | May 2011 from other trials in which these witnesses had testified. The presiding judge scolded the accused, telling him he was trying to turn the ca se into a formal affair as if it were being heard in a conventional court. He said that th e discrepancy was irrelevant to the value of the witnesses testimony and that the accused should stop wasting time.322 In the case of Thodore Munyangabe, also discussed above, a key witness significantly contradicted himself between the trial and appeals stages.323 When the accused identified the inconsistencies on appeal, the presiding ju dge rejected his argument and read out the witnesss statement from the trial. The accused and a number of community members objected, saying that the testimony read by the judge (as reflected in the trial courts record of the proceedings) was not the same testimo ny presented at the trial and that the statement must have been altered after the trial. The judges rejected the argument, and, relying on the witnesss earlier statement, upheld the conviction.324 Sentencing and Reparations The question of what constitutes an appropriate punishment for genocide and related offenses has been hotly debated both inside and outside Rwanda. Genocide is among the most heinous of crimes, and as such the punishment should reflect the gravity of the crime.325 The Rwandan Government occasionally expressed disappointment at what it viewed as lenient sentences handed down by the ICTR.326 Since Rwanda abolished the death penalty in 2007, the maximum penalty for genocide in Rwandan courts (whether conventional courts or gacaca) is life imprisonment with special provisions.327 Gacaca courts follow sentencing guidelines wh ich may be roughly summarized as follows: 322 Human Rights Watch, trial observations, Case of Dr. Pascal Ha barugira, Jurisdiction of Butare Town Sector, Huye District, Southern Province, January 30, 2008. 323 See above, section VI, The story of Thodore Munyangabe. 324 Human Rights Watch, trial observations, Case of Thodore Mu nyangabe, Jurisdiction of Shangi Sector, Nyamasheke District, Western Province, August 24, 2009, September 15, 2009. 325 Human Rights Watch interview with Ibuka Executive Secret ary Benot Kaboyi, August 11, 2009; Human Rights Watch interview with Avega Head of Advocacy, Ju stice, and Information, Sabi ne Uwase, August 8, 2009 ; Phil Clark, Truth and Reconciliation at a Price, Radio Netherlands Worldwide, 24 August 2010, http://www.rnw.nl/ international-justice/article/truthand-reconciliation-a-price (a ccessed on October 8, 2010). 326 Rwanda Not Satisfied with UN Courts Genocide Sentence, Hirondelle News Agency, June 18, 2004, http://www.hirondellenews.com/content/view/1101/309 (accesse d September 6, 2010); Frosty Reception for Colonels Genocide Punishment, Hirondelle News Agency, December 16, 2006, http://www.hirondellenews.com/content/view/3284/26 (accessed September 6, 2010); ICTR Hands Munyakazi 25 Years Over Genocide, The New Times, July 1, 2010, http://www.allafrica.com/stories/20100701 0101.html (accessed September 6, 2010). 327 Organic law no. 31/2007 of 25 July 2007 Relating to the Abolition of the Deat h Penalty, art. 4; 2004 Gacaca Law, art. 72; 2007 Gacaca Law, art. 13; 2008 Gacaca Law, art. 17.

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Justice Compromised 74 Category 1 offenders receive a mandator y sentence of life imprisonment with special provisions; Category 2 offenders receive sentences rangin g from five years to life imprisonment, depending on the nature of the crime and whether the person intended to kill; and Category 3 offenders are ordered to pay ci vil reparations in the amount of damage caused.328 Persons who confess receive a reduced sentence, with those confessing before they are accused receiving the lightest sentences.329 By law, those convicted can also be stripped of certain civil rights, incl uding the right to vote, the right to engage in public or military servic e, and the right to be a teacher or work in the medical profession.330 Children under 14 at the time of the crime cannot be prosecuted, while children between the ages of 14 and 18 receive reduced sentences.331 Provisional releases Over the years, the Rwandan government has a ttempted to reduce the prison population by releasing certain categories of detainees, prima rily the elderly, the chronically ill, minors, and those without files. On January 1, 2003 President Kagame announced the provisional release of prisoners who had confessed to their crimes (except those in category 1) and who had already served their sentences.332 Those released included genocide suspects and suspects of criminal offenses unrelated to genocide.333 328 2004 Gacaca Law, arts. 72, 73, 75; 2007 Gacaca Law, arts. 13-14; 2008 Gacaca Law, art. 17. 329 Ibid. 330 2004 Gacaca Law, art. 76; 2007 Gacaca Law, art. 15. Category 1 offenders suffere d a total and permanent loss of these rights; category 2 offenders could have certain of these rights removed fo r a fixed period or indefinitely. Many courts believed that t he loss of civic rights was automatic and therefore did not order this penalty in judgments, leaving hundreds of thousands of Rwandans perceived as unable to vote or work in the public sect or or as teachers and medical st aff. See ASF, Monitoring of the Gacaca Courts, Judgment Phase: Analytical Repo rt No. 2, October 2005-September 2006, http://www.asf.be/publications/Rwanda_Mon itoringGacaca_RapportAnalytique2_EN.pdf (accessed March 21, 2011), pp. 45-46; ASF, Monitoring of the Gacaca Courts, Judgment Phase: Analytical Re port No. 3, October 2006-April 2007, http://www.asf.be/publications /publication_rwanda_Rapport_analytique_Gacaca II_EN.pdf (accessed March 21, 2011), p. 4243. Given the confusion around the loss of civic rights, it was assumed that category 3 offenders could not vote. In 2008, shortly before parliamentary elections, Pa rliament adopted an amendment to the el ectoral law and provided for category 3 offenders to retain their right to vote. 331 2004 Gacaca Law, art. 78; 2007 Gacaca Law, art. 16. 332 PRI, PRI Research on Gacaca Report, Report No. 4: The Guilty Plea Procedur e, Cornerstone of the Rw andan Justice System, January 2003, http://www.penalreform.org/files/rep-ga4-2003-guilty-plea-en_0.pdf (accessed March 21, 2011), p. 20 (copy of the presidential communiqu). The Presidents communiqu made clear that thos e released could still face trial in gacaca. Anyone found to have made a false confession would return immediately to prison. Anyone found guilty in gacaca faced the possibility of returning to jail depending on the length of the sentence imposed. 333 Lars Waldorf, Mass Justice for Mass Atrocity: Re thinking Local Justice as a Transitional Model, Temple Law Review, vol. 79, Spring 2006, pp. 42-43; Carina Tertsakian, Le Chteau: The Lives of Prisoners in Rwanda (London: Arves Books, 2008), p. 426-28.

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75 Hum an Rights Watch | May 2011 By March 2003, the government had released mo re than 24,000 detainees and sent them to solidarity camps (known as ingando) for two months of reeduc ation, before reintegrating them into their communities.334 In mid-2005, the government pr ovisionally released another 20,000 detainees and, in early 2007, it released yet another 9,000 prisoners.335 The releases helped reduce the prison population but caused many genocide survivors to fear for their safety.336 A number of prisoners who benefited from these provisional releases were later rearrested once gacaca trials began. Life imprisonment with special provisions The sentence of life imprisonment with special provisions replaced the death penalty in 2007 and has been the mandatory sentence for all category 1 offenders who do not confess or plead guilty to their crimes.337 Rwandan law originally defined special provisions as imprisonment in isolation and provided that supplemental legislation would establish more specific modalities for its application.338 The United Nations and the ICTR expressed concern over whether the punishment amounted to prolonged solitary confinement and would therefore constitute inhumane treatment.339 International and Rwandan human rights groups similarly criticized the penalty and called for its abolition.340 334 Ministry of Justice, Imbonerahamwe Igaragaza Ibisabwa nintangazo Ry aturutse Muri Perezidansi ya Repubulika [Chart Showing What Was Required by the Commu niqu of the President of the Republic], March 7, 2003 (copy on file with Human Rights Watch). 335 Rwanda Prepared for Release of Confessed Prisoners, Hirondelle News Agency, August 25, 2005, http://www.hirondellenews.com/content/view/2787/309 (acce ssed December 4, 2010); Rwanda Liberates Over 9192 Prisoners, Hirondelle News Agency, http://www.hirondellenews.c om/content/view/9294/26 (accessed December 4, 2010); Rwanda Frees Genocide Prisoners, BBC News Online, http://news.bbc.co.uk/2/hi/afric a/6376979.stm (accessed December 4, 2010). 336 Genocide Survivors in Danger, Says Ibuka, Hirondelle News Agency, November 15, 2005, http://www.hirondellenews.com/content/vie w/3176/26 (accessed December 4, 2010). 337 2008 Gacaca Law, art. 17. The sentence has also been handed down by conventional courts. Rwandan Penal Code, arts. 36, 116, 118, 156, 185, 190, 202. 338 Organic law no. 31/2007 of 25 July 2007 Relating to the Abolition of the Death Penalty, art. 4. 339 U.N. Human Rights Committee, Concluding Observat ions, May 7, 2009, UN Doc. No. CCPR/C/RWA/CO/3, http://www.ccprcentre.org/doc/ICCPR/AR/A_64_40(Vol%20I)_Eng.pdf (accessed December 10, 2010), para.14, p. 47; U.N. Human Rights Committee, Les Experts sInquitent du Fonctionnement des Gacaca au Rwanda Mais Se Flicitent des Progrs dans la Parit des Sexes, U.N. Doc. No. DH/CT/704, http://www.un.org/News/fr-press/docs/2009/DHCT704.doc.htm (accessed September 1, 2010); The Prosecutor v. Yusuf Munyakazi, ICTR, Case No. ICTR-97-36-R11bis, Decision on the Prosecutions Appeal Against Decision on Referral Under Rule 11bis (Appeals Chamber), October 8, 2008, paras. 8-21; The Prosecutor v. Gaspard Kanyarukiga, ICTR, Case No. ICTR-2002-78-R11bis, Decision on the Prosecutions Appeal Against Decision on Referral under Rule 11bis (Appeals Chamber), October 30, 2008, paras. 12-17; The Prosecutor v. Ildephonse Hategekimana, ICTR, Case No. ICTR-00-55B-R11bis, Decision on the Prosecutions Appeal Against Decision on Referral Under Rule 11bis (Appeals Chamber), December 4, 2008, paras. 31-38. 340 Rwanda: End Lifetime Solitary Confinement, Huma n Rights Watch news release, January 29, 2009, http://www.hrw.org/en/news/2009/01/29/rwa nda-end-lifetime-solitary-confinement; ASF, HRW, and PRI, Lettre Aux Autorits Judiciaires sur le Nouveau Projet de Loi Gacaca 2008, May 19, 2008, p. 2 (on file with Human Rights Watch); ASF, Avocats Sans Frontires met les trois recommandations suivantes en matire de justice et de droits de lhomme au Rwanda pour un

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Justice Compromised 76 The mandatory application of life imprisonment with special provisions has been problematic in gacaca as the penalty has sometimes been imposed following a flawed process before non-professional judges, in circ umstances where all the rights of the accused to due process were not respected. In some cases, this meant that the most stringent penalty was imposed following summary trials which may have lasted no more than an hour. The Rwandan government maintained that lif e imprisonment with special provisions did not amount to solitary confinement, but accepted that a more precise definition was needed. It asserted that no person would be placed in isolation until new legislation outlining the penalty entered into effect.341 In any case, Rwanda did not have the facilities to put the measure into effect given the large number of persons sentenced to life imprisonment with special provisions and the very limited pris on space available. In November 2008, in response to concerns expressed by the ICTR and countries contemplating extradition of genocide suspects to Rwanda, the government adopted legislation barring application of the sentence to cases transferred to Rwandan courts by the ICTR or foreign jurisdictions.342 In September 2010, more than three years after the penaltys introduction into Rwandan law, Parliament enacted legislation further defining the punishment. The new law provides that: 1 a sentenced person is not entitled to any kind of mercy, conditional release or rehabilitation, unless he/she has served at least twenty (20) years of imprisonment; 2 a sentenced person is kept in an individual cell reserved to the guilty people of the inhuman crimes... The cell must have sufficient dimensions and requirement equipment [material]. 343 meilleur accord avec les normes et standards internationaux, April 2008, http://www.asf.be/publications /publication_recommandationsRwanda_avr08FR.pdf (accessed December 4, 2010); ASF, The Ratification of the Convention Against Torture: A Step Forward in the Adoption of International Norms of Justice and Human Rights, June 26, 2009, http://www.eurac-network.org/web /uploads/documents/20090629_11634.pdf (accessed October 7, 2010); Human Rights League of the Great Lakes (LDGL), Rapport de la Socit Civile sur la Mise en uvre du PIDCP, March 2009, http://www.ccprcentre.org/doc/HR C/Rwanda/NGO/Rapport%20LDGL_CCPR_HRC.pdf (accessed September 1, 2010), p. 6. 341 Human Rights Watch interview with Minister of Ju stice Tharcisse Karugarama, Kigali, March 19, 2009. 342 Organic law no. 66/2008 of 21/11/2008 Modifying and Complementing Organic Law No. 31/2007 of 25 July 2007 Relating to the Abolition of the Death Penalty, art. 1. 343 Law no. 32/2010 of 22/09/2010 Relating to Serving Li fe Imprisonment with Special Provisions, art. 3.

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77 Hum an Rights Watch | May 2011 The law guarantees those sentenced to the punishment certain basic rights, such as the right to be visited by relatives, to physical ex ercise, to medical care, to leisure activities, and to worship.344 However, it does not specify the frequency with which these rights may be exercised, all of which are to be determined by internal prison rules and regulations. It also does not guarantee regular interaction with ot her prisoners, which is the only dependable form of contact for prisoners (especially thos e detained for long periods whose relatives, friends, and lawyers may stop visiting them over the years). Human Rights Watch welcomes the governments measures to bring the penalty of life imprisonment with special provisions in line with its domestic and international legal obligations and recognizes that, to date, prisoner s have not been held in isolation. However, Human Rights Watch remains cautious about the potential application of this sentence until it is demonstrated in practice that prisoner s are granted all these basic rights, including regular contact with other prisoners. Community service Alongside the es tablishment of gacaca, the government introduced an alternative to imprisonment in genocide and genocide-related cases: community service.345 While most countries reserve community service for low-level offenders, Rwanda introduced it only for genocide-related cases.346 The alternative sentence offere d three main benefits. First, community service would alleviate overcrowding in prisons. Second, it could help reintegrate convicted persons into their local communities. Third, it would provide a means for indigent convicts to make reparations to society and to contribute to national development.347 The community service program, know n by its French acronym TIG (travaux dintrt gnral), became operational in 2005 and allowe d category 2 offenders who confessed to their crimes (and whose confessions were accepted as complete and truthful) to serve the first portion of their sentence in prison an d the second portion doing community service.348 The program was originally consensual: prisoner s could decide whether to serve their full 344 Ibid., arts. 5-7, 10-11. 345 2001 Gacaca Law, arts. 69, 70, 75; 2004 Gacaca Law, arts. 73, 74, 78, 80, 81; 2007 Gacaca Law, arts. 14, 16, 17; 2008 Gacaca Law, arts. 18, 20, 21. See also Presidential Order No. 26/01/2001 of 10/12/2001 on Community Service as an Alternative Penalty to Imprisonment. 346 TIG has never been used in Rwanda for criminal cases other than genocide. 347 Community service, which calls upon large portions of the population to assist in the rebuilding of the country, was particularly useful in light of Rw andas fight against poverty and its co mmitment to economic development. 348 Presidential Order No. 10/01 of 7/3/2005 Determining the Mo dalities of Implementation of Community Service for General Interest as the Alternative Se ntence to Imprisonment; 2004 Gacaca Law, art. 73. If the person commits another crime while participating in the TIG program, he or sh e will be sent back to prison to serve the remainder of the se ntence there. 2004 Gacaca Law, art. 80.

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Justice Compromised 78 sentence in prison or commute half of it into community service.349 The government later removed the requirement of prisoners cons ent, and the program became mandatory for anyone that qualified.350 In 2008, Parliament amended the gacaca laws to require individuals sentenced to prison and communi ty service to serve the community service portion of the sentence first, with the possibility of having the remainder of the sentence suspended if the person satisfactorily completed the TIG program.351 Rwandan law provides for two types of community service: it can be performed in either a convicts local community or a special TIG ca mp. In recent years, the government has prioritized the use of camps.352 Individuals who perform community service in their home communities live with their families and do co mmunity service three days a week. The work usually consists of construction and repair of roads, schools, and housing settlements for genocide survivors. Individuals often spend the remainder of the week tilling their own land or doing other remunerated work. In contrast, those who live in TIG camps work six days a week but complete their sentences in half the time: for example, a person sentenced to eight years community service can complete his or her sentence in only four years in a TIG camp.353 In both instances, projects involve inte nse manual labor for many hours each day and can be extremely physically demanding.354 The Rwandan government has described th e community service program as a huge success.355 Ordinary Rwandans perspectives have been mixed. Genocide survivors expressed two main concerns in interviews with Human Rights Watch. First, some categorized community service as a lighter sentence than imprisonment and as inconsistent 349 2001 Gacaca Law, art. 75. 350 2004 Gacaca Law, arts. 73 and 78; Presidential Order No. 10/01 of 7/3/2005 Determining the Modalities of Implementation of Community Service for General Interest as the Alternative Sentence to Imprisonment. 351 2008 Gacaca Law, art. 21. 352The decision to organize TIG work in camps was a response to the uneven distribution of prisoners across the country, with certain community-based TIG projects incurring large operational costs for only a few prisoners in the area and having inadequa te laborers to complete the necessary work. The use of TIG camps therefore appeared more financially efficient. Under the terms of the 2005 presidential order, districts or municipalities could make convicts work in areas outside their local communities and for more than the normal three days per week so long as the period did not exceed one year. This restriction has not been respected unde r the TIG camp program. PRI, Monitoring and Research Report on the Gacaca: Community Service (TIG), Areas of Reflection, March 2007, http://www.penalreform.org/publicati ons/gacaca-research-report-no9-community-service-0 (accessed September 7, 2010). In mid-November 2010, the government reported that all convicts serving community service were in camps (and not living in thei r local communities). Human Rights Watch interview with former civil servant, November 15, 2010. 353 At the end of 2010, there were 57 TIG camps around the co untry with approximately 25,0 00 convicts serving community service. Human Rights Watch interview with form er civil servant, Kigali, November 15, 2010. 354 PRI, Monitoring and Research Report on the Gacaca: Community Service (TIG), Area s of Reflection, March 2007, http://www.penalreform.org/fil es/rep-ga9-2007-community-service-en_0.pdf (acc essed on October 8, 2010), pp. 25-26. 355 TIG a Success, Says Official, The New Times, February 29, 2008, http://allafr ica.com/stories/200802290207.html (accessed September 8, 2010).

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79 Hum an Rights Watch | May 2011 with the gravity of the crime of genocide. They therefore considered the tigistes (or persons doing community service) to be getting off lightly.356 Second, some survivors expressed fear at having to live alongside the convicted persons in their local communities and worried that the convicts might take revenge on them.357 Human Rights Watch is not aware of acts of re taliation committed while a convicted person participated in TIG. A few survivors reported that they were later relieved that there had been no significant tensions between them and the tigistes.358 Still, for many survivors the bitterness and fear of revenge remained ever present. Several genocide convicts, on the other hand, told Human Rights Watch that they regarded the community service program as a form of forced labor and that they felt exploited by the government. Others complained about the conditions in TIG camps and, in particular, that they did not receive enough food to sustain them in carrying out the long hours of manual work.359 In the course of one interview in a TIG camp, an interviewee revealed that he had completed his community service sentence but had not yet been released. As Human Rights Watch tried to follow up with the interviewee, a high-ranki ng government official who had overheard the remarks promptly escorted the Human Rights Watch researchers away from the camp.360 By mid-2009, more than 90,000 persons ha d been sentenced to community service.361 Approximately 26,000 persons had completed TIG by the end of 2010, while more than 19,000 continued to serve their sentence.362 More than 27,000 had yet to start the program due to limited capacity.363 Whether the community service program will achieve its objectives remains to be seen. It has certainl y succeeded in reducing the prison population and has contributed to the physical rebuilding of the country. The programs success in reintegrating tigistes into their local communities is more debatable, particularly for those in 356 Human Rights Watch interview with genocide survivor, Huye District, August 14, 2009; Human Rights Watch interview with genocide survivor, Kamonyi District, August 12, 2009; Human Ri ghts Watch interview with Ibuka Executive Secretary Benot Kaboyi, August 11, 2009. 357 Human Rights Watch interview with genocide survivor, Kicukiro District, August 11, 2009. Many genocide survivors also feared the return of released prisoners into their community. 358 Human Rights Watch interview with genocide survivor, Ngororero District, August 10, 2009. 359 Human Rights Watch interviews with tigistes, Kigali, June 16, 2008. 360 Human Rights Watch interview with tigiste, Kigali, June 16, 2008. 361 Official Statistics from Nati onal TIG Office, June 30, 2009, http://www.tig.minijust.gov.rw/eng/images/Database/le% 20nombre%20de%20tigistes%20en%20date%20du%2030.pdf (accessed September 8, 2010). 362 Official Statistics from National TIG O ffice, Trimester Report for October-December 2010, p. 2 (copy on file with Human Rights Watch). 363 Human Rights Watch telephone interview with Liprodhor staff member, March 23, 2011. Liprodhor has a TIG monitoring program.

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Justice Compromised 80 TIG camps who live far from their home communi ties and have little opportunity to interact with the outside world. Compensation Compensation to victims has been a contentious issue from the very start. Persons accused of category 3 offenses, defined as property crimes (resulting from looting and pillaging), have been made to pay reparations to their victims for the amount of the damage caused.364 However, the gacaca laws have never provided for dire ct indemnification of victims by category 1 and 2 convicts. The 1996 Genocide Law and 2001 Gacaca Law provide for gacaca courts to draw up lists of damages suffered by victims (including bodily injuries and related costs) and to pass them on to a governme nt compensation fund which had yet to be established.365 The 2004 Gacaca Law states that [o]ther forms of compensation the victims receive shall be determined by a particular law, which gave many genocide survivors hope that they would receive monetary compensation. However, to date, no one has received any monetary or other compensation. Most genocide survivors interviewed by Human Rights Watch cited the lack of compensation as one of the main shortcomings of the gacaca process. In a country where most of the population draws its livelihood from farming and has limited financial resources, many victims looked to reparations as a tangible pu nishment that would recognize their suffering and would help them in their daily lives. Realisti cally, it would have been very difficult to set a price on the damage suffered by victims of the genocide and other crimes committed in 1994. Moreover, most accused persons are poor and would have been unable to pay any compensation. Yet the decision not to make perpetrators indemnify victims and their families and not to provide government inde mnification has disappointed many survivors.366 In December 2008, the government announced an overhaul of the Fund for the Support and Assistance of Genocide Survivors (known by its French acronym FARG).367 The fund was 364 2004 Gacaca Law, art. 75. Compensation in category 3 cases has proved contentious, with many Rwandans reporting that potential beneficiaries sometimes substantially inflated the va lue of damaged property. See PRI, Monitoring and Research Report on the Gacaca, The Settlement of Property Offence Cases Committe d During the Genocide: Update on the Execution of Agreements and Restoration Condemnations, August 2009, http://www.penalreform.org/fi les/Rep_Ga12_final_2009.pdf (accessed December 7, 2010), pp. 45-46. 365 2001 Gacaca Law, art. 90; 1996 Genocide Law, art. 32. 366 PRI reached a similar conclusion. PRI, Eight Years OnA Record of Gacaca Monitoring in Rwanda, p. 46. 367 Law No. 69/2008 of 30/12/2008 Relating to the Establishment of the Fund for the Support and Assistance to the Survivors of the Genocide Against the Tutsi and Other Cr imes Against Humanity Committed Between 1st October 1990 and 31st December 1994, and Determining its Organisation, Competence, and Function ing (hereinafter FARG Law). See also Le Lent Chemin de lIndemnisation, Hirondelle News Agency, April 19, 2004, http://fr.hirondellene ws.com/content/view/912/26 (accessed September 6, 2010).

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81 Hum an Rights Watch | May 2011 established in 1998 with government financin g but encountered difficulties over the years, including allegations of corruption, financia l mismanagement, and poor construction of housing for genocide survivors. 368 FARGs premise was simple: to provide financial assistance to genocide survivors in the form of childrens school fees, medical assistance, building of houses, and support for inco me-generating activities.369 Under the new law, the government in January 2009 began the process of confirming th at FARG beneficiaries were indeed genocide survivors who qualified for assistance.370 Within days, the authorities found more than a dozen instances of fraud, including ghost beneficiaries and mismanaged funds.371 A scandal ensued resulting in hundreds of individuals being removed from the beneficiary list, the dismissal of several senior FARG officials, and the arrest of more than 100 people.372 Even after the shakeup, FARG has continued to have some of the same difficulties.373 The genocide survivor fund has been a mixed success. Its benefitsespecially medical fees, school tuition, and housinghave provided valu able assistance to many genocide survivors. However, it has a narrow definition of who qual ifies as a survivor. It excludes Tutsi women who were married to Hutu before the genocide and children of such marriages, as well as Hutu widows who lost their Tutsi husbands during the genocide.374 Hutu men and their wives or children who were injured or killed do not qu alify as survivors, even if they were killed trying to protect Tutsi. One Tutsi widow married to a Hutu man who died during the genocide lamented the fact that she could not receive medical care even though she was handicapped as a result of injuries 368 Blame-Shifting Between Gove rnment and FARG Deepens, The New Times, January 8, 2009, http://allafrica.com/stories/200901080178 .html (accessed October 7, 2010). 369 The Rwandan government contributes 6 percent of its annual internal review to FARG, which amounted to 800 million Rwandan francs (Frw) in 2007 (US$ 1.32 million), 1.1 billion Frw in 2 008 (US$ 1.8 million), and close to 1.5 billion Frw in 2009 (US$2. 5 million). FARG Law, art. 22. The FARG also receives private and internat ional financing. FARG Blames Government Officials for its Woes, The New Times, January 7, 2009, http://allafrica.com/stories/200901070138.html (accessed September 6, 2010). 370 Minister Slams Local Leaders over FARG, The New Times, January 12, 2009, http://www.newtimes.co.rw/inde x.php?issue=13773&article=12365 (accessed October 8, 2010). 371 Blame-Shifting Between Gove rnment and FARG Deepens, The New Times, January 8, 2009, http://allafrica.com/stories/200901080178 .html (accessed October 7, 2010). 372 Over 500 Students Removed from FARG List, The New Times, January 15, 2009, http://www.newtimes.co.rw/index.php?issu e=13776&article=12462 (accessed on Octobe r 8, 2010); Government Sacks FARG Leaders, The New Times, January 15, 2009; FARG Corruption Scam Claims 104, The New Times, March 17, 2009, http://allafrica.com/stories/200903170175.html (accessed on October 8, 2010). In December 2009, the government announced the appointment of a new director to oversee FARG. Prime Ministers Order No. 42/03 of 10/6/2009 Appointing a Director of the Fund for the Support and Assistance to the Survivors of the Genocide Against the Tutsi and Other Crimes Against Humanity Committed Between 1st October 1990 and 31st December 1994. 373 New deadline issued to reorganize Genocide survivors fund, Rwanda News Agency, September 27, 2010, http://rnanews.com/national/4250-new-deadline-issued-to-reoganise-genocide-survivors-fund (accessed October 7, 2010). 374 Human Rights Watch interview with local NGO staff member, Kigal i, August 7, 2009; Human Rights Watch interview with local NGO staff member, Kigali, August 12, 2009; Human Rights Watch interview with international NGO staff member, Kigali, August 19, 2009.

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Justice Compromised 82 suffered during the genocide.375 Another Tutsi widow with children remained homeless after being denied FARG assistance for the same reason.376 FARG officials refuted Human Rights Watchs claim that it fails to assist those who qualify.377 However, Human Rights Watch and local NGOs working with these vulnerable gr oups documented a number of such cases.378 Allegations of corruption and mismanagement of funds in FARG have left many genocide survivors disillusioned by the governments promises to assist them.379 Likewise, Ibuka, the main genocide survivors organization,380 does not provide assistance to Tutsi women married to Hutu, and does not provide assistance to Hutu at all.381 One Tutsi woman said: Ibuka will not help me because my children are Hutu. They refuse to give me the certificate of a survivor because I was married to a Hutu. Now Im sick with HIV as a result of being raped during the genocide, and I dont have money to continue to get medicine. My children find the situation unfair. Their father was killed because of their mother and yet they arent seen as victims of the genocide.382 375 Human Rights Watch interview with genocide survivor, Ngororero District, August 10, 2009. 376 Human Rights Watch interview with genocide survivor, Kicukiro District, August 8, 2009. 377 Human Rights Watch interview with FARG Director Bernard Itangishaka, Kigali, August 18, 2009. 378 Human Rights Watch interview with local NGO staff member, Kigali, August 7, 2009; Human Rights Watch interview with local NGO staff member, Kigali, August 12, 2009; Human Rights Watch interview with local NGO staff member, Gitarama, August 13, 2009; Human Rights Watch interview with international NGO staff member, Kigali, August 19, 2009. 379 Ignatius Ssuuna and Pelagie N. Mbabazi, Wid ows Association Under Probe over FARG money, The New Times, October 29, 2009, http://allafrica.com/stories/200910300085.html (accessed October 11, 2010). 380 Ibuka, which means remember in Kinyarwanda, was founded in late 1994 to address issues of justice, memory, social and economic problems faced by survivors. See Ibukas No vember 2010 newsletter, avai lable at http://www.ibuka.rw (accessed March 16, 2011). Ibuka is an umbrella organization for genocide survivor associations in Rwanda and often acts as the principal speaker for genocide survivors in the country. It has often played a highly poli ticized role. The organization ha s affiliates in several other countries where genocide survivors reside, including Belgium and France. 381 Human Rights Watch interview with local NGO staff member, Kigal i, August 7, 2009; Human Rights Watch interview with local NGO staff member, Kigali, August 12, 2009; Human Rights Watch interview with local NGO staff member, Gitarama, August 13, 2009; Human Rights Watch interview with internat ional NGO staff member, Kigali, August 19, 2009. 382 Human Rights Watch interview with genocide survivor, Kicukiro District, August 11, 2009.

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83 Hum an Rights Watch | May 2011 VII. The Community Dynamic of Gacaca Gacacas success has been predicated on local community participation. The aims of involving the community have been to uncove r the truth about what happened during the genocide, to safeguard the fair trial rights of perpetrators and victims, and to contribute to the healing process of the community as a whole. At times, local participation has helped to maintain the integrity of the process and to achieve these goals. However, the waning interest of a significant part of the population and the silence of others (who have attended trials but did not speak publicly) have limited gacacas success, as the public could not always be relied upon to denounce false test imony or miscarriages of justice. Individuals had well-founded reason to fear that if th ey spoke out, they risked being prosecuted themselves or incurring problems with neighb ors or the government. Manipulation of some trials, with private citizens using gacaca to try to settle scores or the government using it to to silence critics, and inappropriate influenc e exerted by other actors such as district coordinators, further contributed to a certain level of disillusionment. Community Participation When gacaca began, local communities around the country attended trials in huge numbers. Judges turned up early and appeared motiva ted to perform their duties. Rwandans were curious to see how the process would unfold. 383 Perhaps expectedly, this level of enthusiastic involvement has declined sharply over the years. When interviewed in 2002, members of differen t communities told Human Rights Watch that they had found the preliminary stages of the pr ocesscreating lists of families, victims, and perpetrators, and the gathering of initial in formation bureaucratic, slow, and tedious.384 Some people complained that individual test imonies were too long or that debates among community members should have been postponed until the actual trial.385 In some urban areas, especially Kigali, residents who had no t lived in the area during the genocide saw 383 PRI, PRI Research on Gacaca Report: Rapport III, April June 2002, h ttp://www.penalreform.org/publications/gacacaresearch-report-no3-jurisdictions-pilot-phase-0 (accessed September 2, 2010), p. 9. 384 Human Rights Watch interviews with local residents, Jurisdicti on of Kimisugi Cell, Mutete Sector, Gicumbi District, Northern Province, October 21, 2002 and February 7, 2003; Human Rights Watch interview with local re sidents, Karenge Sector, Ngoma District, Eastern Province, September 23, 2002. 385 Human Rights Watch interviews with local residents, Kimisu gi Cell, Mutete Sector, Gicumbi District, Northern Province, February 7, 2003; Human Rights Watch interviews with local re sidents, Rwimbogo Cell, Nyarug unga Sector, Kicukiro District, Kigali, July 13, 2002; Human Rights Watch trial observations, Jurisdiction of Mutete-Kavumu, Mu tete Sector, Gicumbi District, Northern Province, September 18, 2002; Human Rights Watch tr ial observations, Jurisdiction of Gishamvu Cell, Gishamvu Sector, Huye District, Southern Province, October 30, 2002.

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Justice Compromised 84 little need to participate in gacaca.386 In areas where few genocide survivors remained, there was even less interest.387 Several factors deterred genocide survivors from taking a more meaningful and sustained interest in the gacaca process. First, as one former Ibuka president put it in 2003, There are no incentives for survivors [in gacaca]: there has not been compensation or reparation388 Second, survivors risked being re-traumatized in gacaca,389 particularly if they showed emotion a sign of weakness in Rwandan culture.390 Third, many genocide survivors feared retaliation in their local communities as a result of describing what had happened to them or challenging other pe rsons testimonies.391 Hutu often stayed away from gacaca, afraid of being publicly denounced or concerned they might not be given an opport unity to defend themselves.392 According to one judge, people were also reluctant to speak out in response to false testimonies for fear of being accused themselves.393 Hutu whose relatives were killed and pr operty destroyed by RPF soldiers were unable to raise these cases, which left them frustrated and disappointed with the process.394 Both genocide survivors and ge nocide perpetrators worried that speaking about what they knew in gacaca would lead to social ostracism or re percussions from relatives and neighbors or would create problems with local government officials.395 As a result, the practice of ceceka (meaning to keep silent) emerge d, with local residents attending gacaca but 386 Peter Uvin, The Introduction of a Modernized Gacaca for Judging Suspects of Participation in the Genocide and the Massacres of 1994 in Rwanda: A Discussi on Paper, 2000, http://fletcher.tufts.ed u/faculty/uvin/pdfs/reports/Boutmans.pdf (accessed September 9, 2010), p. 10. 387 A representative of Avega (the association of widows of the genocide) estimated that 65 percent of genocide survivors have relocated since the genocide. Remarks of Avega Representative, Co-Existence Network Meeting, Kigali, July 23, 2002. 388 Remarks of former Ibuka President Antoine Mugesera, CLADHO Conference on Gacaca, Kigali, February 14, 2003. 389 Karen Brouneus, The Trauma of Truth-Telling: Effects of Witnessing in the Rwandan Gacaca Courts on Psychological Health, Journal of Conflict Resolution, February 23, 2010, http://jcr.sagepub.com/content/ea rly/2010/02/23/0022002709360322 (accessed September 21, 2010). 390 Human Rights Watch trial observations, Jurisdiction of Mubo ni Cell, Gishamvu Sector, Huye District, Southern Province, September 16, 2002; Human Rights Watch trial observations, Ju risdiction of Mutete-Kavumu Cell, Mutete Sector, Gicumbi District, Northern Province, September 18, 2002; Human Rights Watch trial observations, Jurisdiction of Gishamvu Cell, Gishamvu Sector, Huye District, Southern Province, January 2, 2003. 391 Human Rights Watch interview with rape victim, Huye Distri ct, August 14, 2009; Human Rights Watch interview with rape victim, Kamonyi District, August 12, 2009. 392 Human Rights Watch interviews with local residents, Kibun go, Ngoma District, Eastern Province, October 3 and 7, 2002. 393 Human Rights Watch interview with gacaca judge, Kibungo, October 3, 2002. 394 Human Rights Watch interview with local government official Kibungo, Ngoma District, Eastern Province, October 7, 2002. 395 Human Rights Watch interviews with accu sed persons, Kigali, August 19 and 27, 2 009; Human Rights Watch interviews with genocide survivors, Kicukiro District, August 11, 2009; Huma n Rights Watch interview with local human rights activist, September 1, 2009; Human Rights Watch interview with gacaca judge, Ngororero District, August 10, 2009.

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85 Hum an Rights Watch | May 2011 deliberately choosing not to speak.396 Repercussions for speaking out included prosecution for perjury, genocide ideology minimization of genocide, or even complicity in genocide. There may also have been an implicit pact am ong some Hutu not to denounce other Hutu.397 Regardless of the reasons, the fact that resi dents in many communities did not participate actively in gacaca undermined the reliability of proceedings and weakened the governments argument that popular involvem ent was ensuring fair trials. Many Rwandans could also not afford to sacrif ice a day or more away from cultivating their fields or from other forms of paid employment With the population already devoting one day of the week or month (depending on the ar ea) to mandatory community work (known as umuganda), many people were reluctant to devote an additional day or two every week to gacaca.398 As community participation declined, local officials and gacaca judges tried to persuade individuals to attend. When persuasion fa iled, they closed shops on the day of gacaca hearings and threatened to fine reside nts who failed to attend the sessions.399 One individual told Human Rights Watch that fi nes ranged from 1,000 to 2,000 Rwandan francs (up to US$3.30).400 In certain areas, the local defense forces also went house to house, rounding up community members and bringing them to gacaca.401 Gacaca judges occasionally used local defense forces to prevent people from leaving gacaca sessions early. 396 See Max Rettig, Truth, Justice, and Re conciliation in Post-Conflict Rwanda? African Studies Review, vol. 51, no. 3, December 2008, p. 40; ASF, Monitoring of the Gacaca Courts, Judgment Phase: Analytic al Report No. 2, October 2005September 2006, http://www. asf.be/publications/Rwanda_MonitoringGacaca_ RapportAnalytique2_EN.pdf (accessed March 21, 2011), p. 19. 397 See Max Rettig, Truth, Justice, and Re conciliation in Post-Conflict Rwanda? African Studies Review, p. 40. 398 For example, in Cyangugu, residents requested that gacaca be scheduled on the same day as umuganda because they did not want to devote two days per week to public duties. See PRI, PRI Research on Gacaca Report: Rapport III, April June 2002, http://www.penalreform.org/publications/gacaca-resear ch-report-no3-jurisdictions-pi lot-phase-0 (accessed May 5, 2011), p. 9. In Kabanoza, local authorities moved the day for gacaca to that set aside for umuganda, in part because people only wanted to spend one day of the week performing public duties and in part because absenteeism from umuganda resulted in fines. However, that proved equally ineffective and eventually, gacaca was switched back to its original day. Human Rights Watch interview with local government official, Kabanoza Cell, Mukingo Sector, Nyanza District, September 24, 2002. 399 Human Rights Watch interviews with local residents, Kabanoza Cell, Mukingo Sector, Nyanza District, Southern Province, July 21 2002; Human Rights Watch interviews with local residents, Rwimbo go Cell, Nyarugunga Sector, Kicukiro District, Kigali, July 6, 2002; Human Rights Watch interviews with local residents, Rusebeya Sector, Gicumbi District, Northern Province, November 25, 2002; Human Rights Watch interviews with local residents, Kibungo, Ngoma District, Eastern Province, September 26, 2002; Human Rights Watch interviews with local residents, Mutete-Kavumu Cell, Mutete Sector, Gicumbi District, Nothern Province, July 17, 2 002; Human Rights Watch interview with gacaca president, Nyarugunga Sector, Kicukiro District, Kigali, July 12, 2002; Human Rights Watch interviews with local residents, Rwimbogo Cell, Nyarugunga Sector, Kicukiro District, Kigali, September 9, 2002. 400 Human Rights Watch interview with local resident, Kibuye, October 12, 2007. 401 Human Rights Watch interview, Kimisugi Cell, Mutete Sector, Gicumbi District, Northern Pr ovince, October 21, 2002; Human Rights Watch interview with local resident, Gishamvu Cell, Gishamvu Sector, Huye Di strict, Southern Province, August 13, 2002, September 5, 2002, and January 30, 2003 One cell official asked the sector conseiller (local government official) to give him two members of the local defense force to help round people up Human Rights Watch interview wi th local government official, Mutete-Kavumu, November 6, 2002.

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Justice Compromised 86 By 2004, the government was so concerned about attendance that it introduced a provision making participation in gacaca hearings compulsory when Parliament revised the gacaca laws that same year.402 Nevertheless, absenteeism increased over the years, particularly as trials dragged on and the deadline for gacacas closure was extended several times. In late 2007 or early 2008, judges and local officials lost control over attendance at the weekly sessions and stopped fining individuals for their failure to attend. Risks for Witnesses Why is it that any person who tells the truth and defends a man is seen as a traitor? A genocide survivor testifying as a defense witness in gacaca403 The gacaca law makes it a legal duty for all Rwandans to state what they know.404 But individuals speaking out in gacaca proceedings, either as formal witnesses or as community members, have sometimes done so at great person al risk. One local official told Human Rights Watch that witnesses are scared to be arrested under Article 29 [which prescribes penalties for those who perjury themselves, making slanderous statements, or refusing to testify]. Testifying for the defense risked having your statements qualified as lies.405 A genocide survivor who had been raped during the genoci de said that even people who know things dont speak because they dont want to cause problems with their neighbors.406 Rwandas ill-defined laws on divisionism and genocide ideology also had a chilling effect on individuals willingness to speak out in gacaca.407 Many individuals interviewed by Human Rights Watch between 2005 and 2010 expressed fear of being accused of these crimes, or of minimizing the genocide, if they testified in gacaca proceedings. The risk of reprisal was a particular barrier fo r individuals who lost relatives at the hands of the RPF. These individuals were unable to use gacaca to seek redress for these deaths because gacacas jurisdiction only covered genocide-related crimes committed against Tutsi 402 2004 Gacaca Law, art. 29: Every Rwanda citize n has the duty to participate in the Gacaca courts activities. 403 Human Rights Watch, trial observations, Case of Pierre Clavier Karangwa, Jurisdiction of Mbati, Mugina Sector, Kamonyi District, Southern Province, December 29, 2007. The witness asked gacaca judges this question after hearing other genocide survivors present at the trial whispering insults at him while he testified in defense of the accused. 404 2004 Gacaca Law, art.29. 405 Human Rights Watch interview with local go vernment official, Jurisdiction of Zoko Se ctor, Gicumbi District Northern Province, September 6, 2006. 406 Human Rights Watch interview with woma n, Kamonyi District, August 12, 2009. 407 See above, section VI, The presumption of innocence and The right to present a defense.

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87 Hum an Rights Watch | May 2011 (discussed below). People who spoke publicly about RPF crimes or challenged the official tenet of the genocidethat only Hutu were killers and only Tutsi were victimssometimes found themselves swiftly facing charges of g enocide ideology themselves as a result of their testimony. At a gacaca trial in southern Rwanda in October 2006, defense witness Clestin Sindikuwabo stated that the accused person had fled to Burundi in 1994 because he and others had seen RPF soldiers killing people. The court acquitted the accused, but police arrested Sindikuwabo several days later in connection with his statement. In March 2007, a conventional court convicted and sentenced Sind ikubwabo to 20 years in prison for gross minimization of the genocide.408 Another man found himself accused of minimizing the genocide after he stated, at a 2006 weekly gacaca session during the information gatherin g phase, that a group of Tutsi seeking refuge at a church in 1994 pillaged sweet po tatoes from neighboring Hutu farms and should also be forced to apologize in gacaca. The man, who happened to be a genocide survivor, spent nearly 10 months in detention be fore a conventional court acquitted him.409 Threats and intimidation of witnesses, discussed below, also deterred potential witnesses from coming forward. In some cases, witnesses were even killed. According to the government, 120 individuals were killed between 2004 and the end of 2008 because of either their ethnicity or their participation in gacaca a sharp rise from 42 people killed between 1995 and 2003.410 The rate of killings more than quintupled during the time of gacaca, with the highest number of deaths in 2006 when trials began nationwide The government reported that most of the individuals killed were genocide survivors but that a number of Hutu who appeared as witnesses in gacaca were also killed.411 The highest concentration of killings occurred in the southern part of the country, particularly in the Karongi district around the town of Kibuye.412 Human Rights Watch was not able to ascertai n the number of deaths in 2009, but the Rwandan government appears to have reported six deaths to the US embassy, while Ibuka 408 Prosecutor v. Clestin Sindikubwabo, Judgment, Court of Higher Instance of Huye, Case No. RP 0015/07/TGI/HYE RPGR 40832/S2/06/MR/KJ, April 24, 2007. 409 Prosecutor v. Alphonse Minyago, Judgment, Court of Higher Instance of Rusi zi, Case No. RP 0080/06/TGI/RSZ, September 29, 2006. 410 Human Rights Watch interview with Thoneste Karenzi, Coordi nator of the Victim and Witness Support Unit (VWSU) in the National Prosecutors Office, Kigali, November 16, 2010. See al so Government of Rwanda, Report on the Killings of Survivors and Witnesses Between January 1995 and August 2008, September 2008, p. 17. The report does not contain the six additional killings which occurred between September and December 2008. 411 The VWSU was unable to tell Human Rights Watch whethe r the witnesses who were killed had testified as accusing witnesses or in defense of accused persons. 412 Human Rights Watch interview with VWSU Coordinator Thoneste Karenzi, Kigali, November 16, 2010.

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Justice Compromised 88 reported 24.413 As of November 2010, the Victim and Witness Support Unit (VWSU) had recorded only one death of a genocide survivor in 2010.414 Risk of arbitrary arrest and detention or being charged with committing perjury or complicity in genocide Some witnesses have been arbitr arily arrested, detained and, in some cases, prosecuted for giving false testimony. Initially, gacaca courts were permitted to immediately charge a witness with perjury and convict him or her during the same hearing.415 However, in 2006, the SNJG officially instructed the courts to tr y perjury cases only afte r the case in which the alleged perjury occurred had been concluded and to do so in a separate hearing. The same instructions also stated that individuals accuse d of perjury should not be taken into custody pending trial.416 However, Human Rights Watch documented a number of cases in which individuals, usually defense witnesses, were immediately tried for perjury, even after the 2006 instructions. In one case in 2007, a defense witness working in a hospital during the genocide told the court he did not know how victims found dead in the hospital had been killed because he was not at the hospital at the time. He sugge sted the court ask his former supervisor who was also present at the hearing. The supervisor a genocide survivor, accused the witness of genocide denial, leading another community memb er present at the trial to do the same. The court immediately accused, tried, and convicted the witness of perjury, sentencing him to five months imprisonment.417 In a 2009 case, a court threatened to charge all 12 defense witnesses with being accomplices of the accused, without explanation, even though none of them had said anything to implicate themselves in the alleged crimes. The court then ordered all of them to be arrested.418 The 12 remained in detention until the end of the three-week trial, at which time the court convicted them of perjury and sentenced them to prison terms ranging from three to six months.419 413 US State Department, Bureau of Democracy, Human Rights, a nd Labor, Country Reports on Human Rights Practices 2009: Rwanda, March 2010, p. 9. 414 Human Rights Watch interview with VWSU Coordinator Thoneste Karenzi, Kigali, November 16, 2010. 415 2004 Gacaca Law, art. 29. 416 Instruction no. 06/10 of 1 September 2006 from the Executive Secretary of Gacaca Jurisdictions Concerning Arrests in the Context of Gacaca, arts. 4, 9. 417 Human Rights Watch, trial observat ions, Case of Pascal Habarugira et al., Jurisdiction of Ngoma Sector, Huye District, Southern Province, August 8, 2007. 418 Human Rights Watch, trial observations, Case of Joseph Nd agijimana, Jurisdiction of Byim ana Sector, Muhanga District, Southern Province, November 27, 2009. 419 Human Rights Watch, trial observations, Case of Joseph Nd agijimana, Jurisdiction of Byim ana Sector, Muhanga District, Southern Province, December 22, 2009.

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89 Hum an Rights Watch | May 2011 In a third case in 2010, two men who had already confessed to their own crimes and completed their prison sentences appeared as defense witnesses in a separate case. The presiding judge interrupted their testimony and in structed them to sit on the ground next to the judges for the remainder of the hearing.420 Police detained the two men overnight and the court convicted them of perjury the next mo rning, for having testified that they did not see the accused in the community during the genocide.421 In a fourth case, that of former sous-prfet Thodore Munyangabe discussed above, the judge coerced a witness into making a stat ement implicating the accused in planning killings during the genocide. At the appeal stage of Munyangabes case, two genocide survivors were arrested and detained overnigh t after they came to testify in his defense.422 In a 2008 case marred by irregularities, a gacaca court charged 13 defense witnesses with perjury and found that they had all lied to defe nd the accused. At the very next hearing, the court convicted them, together with another five defense witnesses. All but three of them were given prison terms ranging from six to 12 months.423 In other cases, individuals summoned to appear as witnesses found themselves charged as co-accused.424 In some of these cases, the court did so intentionally in what appeared to be an attempt to trick persons into appearing at a he aring. In others, the sudden charges resulted from the persons testimony as a witness, usually on behalf of the accused. In one case, a genocide survivor who testified in defense of a man accused of involvement in her relatives death because she knew him to be innocent was convicted as a co-conspirator and sentenced to 19 years in prison. The decision was affirmed on appeal but was overturned at the revision stage after the SNJG intervened.425 In another case, a court punished a man for appearing as a defense witness by charging and convicting hi m of a crime of which he had already been 420 Human Rights Watch, trial observations, Case of Justin Nsengi mana, Jurisdiction of Gishamvu Sector, Huye District, Southern Province, February 19, 2010. 421 Human Rights Watch, trial observations, Case of Justin Nsengi mana, Jurisdiction of Gishamvu Sector, Huye District, Southern Province, February 20, 2010. 422 See above, section VI, The story of Thodore Munyangabe. 423 Human Rights Watch, trial observations, Case of Flicien Murenzi, Jurisdiction of Muki nga, Nyamiyaga Sector, Kamonyi District, Southern Province, June 6 and 20, 2008. 424 See above, section VI, The right to be informed of the case and to have time to prepare a defense. Human Rights Watch, trial observations, Case of Odette Uwimana, Jurisdiction of Ja bana Sector, Gasabo District, Kigali, December 6, 2009; Human Rights Watch, trial observations, Case of Domina Nyirakabano, Jurisdiction of Cyeza Sector, Muhanga District, Southern Province, October 6, 2009. 425 Human Rights Watch, trial observations, Case of Elisabeth Mukasafari and Vincent Uz arama, Jurisdiction of Jabana Sector, Gasabo District, Kigali, August 28 and September 24, 2009. Overturned by the Gacaca Bench of Shyogwe Sector, Muhanga District, Southern Province, designated by the SNJG, March 14, 2010.

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Justice Compromised 90 convicted.426 Similarly, in another case, a court accused a defense witness, Clestin Rusanganwa, of genocide and placed him in detention. The court acquitted the accused in the original case but convicted Rusanganwa and sentenced him to 19 years' imprisonment.427 Fear of being ostracized by the community People with relevant information somet imes chose not to come forward, fearing repercussions in their local communities or with the government. In several cases documented by Human Rights Watch, persons with information that could have helped accused persons defend themselves against genocide-related charges but who chose to remain silent later apologized to the accused or his or her family. One genocide survivor broke down in tears in September 2007 as he told a Human Rights Watch researcher how ashamed he was at having refused to testify as a defense witness at the gacaca hearing of a man accused of genocide who had saved his life and those of more than a dozen members of his family.428 The fact that some of the accused or their relatives said they understood why potential defense witnesses ha d not come forward and excused them for not testifying is indicative of how real th e fear for potential defense witnesses was.429 In September 2008, a gacaca judge in the southern part of the country tried to cause problems for a man who spoke out in defense of an accused person. The judge, who was not deciding the case and who was merely attendin g the trial as a member of the public, asked for the mans identity card after he testified. When the man refused to give it and asked why the judge was interfering in the proceedings, the judge ordered the man to present his identity card to the judges deciding the ca se. An SNJG lawyer observing the trial then accused the witness of being an intelligence agent and intimidating the population. The man reacted by vehemently accusing the judge and the SNJG lawyer of trying to intimidate him into not testifying for the accused and of trying to cause problems for him within the local community.430 Human Rights Watch is not aware of whether the man suffered any reprisals after the hearing. 426 Human Rights Watch, trial observations, Case of Grard Mutabazi, Jurisdiction of Nyakabanda Sector, Nyarugenge District, Kigali, October 21 and 28, November 4, 11, 18, 25, and December 16, 2007. 427 Human Rights Watch, trial observations, Case of Alphonse Rutayisire and Clestin Rusanganwa, Jurisdiction of Gikondo Sector, Kicukiro District, Kigali, November 7, 14 and December 5, 2009. The appeals co urt affirmed the verdict on March 7, 2010 428 Human Rights Watch interview with genocide survivor, Kigali, September 9, 2007. 429 Human Rights Watch interviews with accused and relatives of accused, Kigali, September 9, 2007 and December 2, 2007. 430 Human Rights Watch, trial observations, Case of Joseph Ndabakenga, Save Sector, Gisagara District, Southern Province, September 18, 2008.

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91 Hum an Rights Watch | May 2011 Intimidation Individuals appearing as prosecution and defense witnesses in gacaca faced intimidation, most often by police and other state agents, but also by genocide survivors and civil parties. In some cases, individuals accu sed of genocide were believed to be behind the intimidation, targeting community members or witnesses who accused them of crimes. The 2004 Gacaca Law provides that anyone found guilty of exerting pressure on, or threatening, a witness or judge is liable to between three and six months imprisonment.431 The punishment is doubled for repeat offender s. Individuals should be prosecuted in the conventional courts under the penal code.432 Where appropriate, a special protection unit in the national prosecutors office investigates and prosecutes these cases. In 2009 alone, there were 473 such investigations resulting in 181 cases heard in the conventional courts.433 According to the VWSU, most intimidation occurred during the national trial phase of gacaca. The majority of cases documented by the VWSU involved accused persons or their relatives verbally threatening genocide survivors and th eir close relatives. Such cases came to the attention of VWSU when genocide survivors sought assistance or protection from the unit. The VWSU also recorded incidents where accu sed persons threatened other detainees or released convicts and their close relatives in response to these individuals statements accusing them in gacaca.434 The VWSU also documented a significantly smaller number of cases where genocide survivors intimidated other survivors who defended individuals before gacaca and where judges or community members intimidated defense witnesses. In an interview with Human Rights Watch, the VWSU coordinator Thoneste Karenzi stated that we were contacted by lots of su rvivors but many less 'non-survivors'.435 In Rwanda, only Tutsi may be considered survivors.436 Based on interviews conducted with defense witnesses, Human Rights Watch has concerns that ethnicity may have been a factor in witnesses confidence in contacting the VWSU and may have resulted in underreporting of incidents involving defense witnesses. 431 2004 Gacaca Law, art. 30. 432 Ibid. 433 US State Department, Bureau of Democracy, Human Rights, a nd Labor, Country Reports on Human Rights Practices 2009: Rwanda, March 2010, p. 9. Human Rights Watch attempted to find out how many of these cases related to prosecution witnesses as opposed to defense witnesses but was unable to obtain this information from the prosecuting authorities. 434 Human Rights Watch interview with VWSU Coor dinator Thoneste Karenzi, November 16, 2010. 435 Ibid. 436 See above, section VI, Compensation.

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Justice Compromised 92 The VWSU took steps in 2009 to raise awareness of its services through radio announcements and a television documentary de scribing its services, as well as meetings with local authorities and police in every dist rict. However, it may be too soon for this awareness campaign to show results in terms of encouraging "non-survivors" (meaning Hutu) or defense witnesses to seek assistance from the VWSU. Human Rights Watch documented a number of cases in which judges were intimidated. Two gacaca judges from the north of the country contacted Human Rights Watch in November 2006 to report that they had been instructed by the district coordinator to formulate accusations against a particular man. A number of judges resisted because no accusations had been made against the man during the in formation gathering phase. According to the judges, however, two other judges in the juri sdiction quickly produced written testimony against the accused, which they believed was fa bricated, and a hearing date was set. Before the trial, the district coordinator told the judg es to convict the man, warning, If you dont, you will be punished. Later, during delibera tions among the judges, a soldier burst into the room and tried to speak with the judges. The judges made him leave, but the two judges who spoke with Human Rights Watch said that they were frightened as the case was being monitored from above (they claimed not to know by whom or for what reason).437 In another case, a local poli ce commander arrested two gacaca judges on August 14, 2005, after they declined to bring genocide-related charges against an individual whom the police commander wanted to be convicted. The police commander accused the judges of planning to derail the gacaca process. A new presiding judge was a ppointed to take over the case, but soon found himself in a similar situation. When he presented the case file to the police commander, the commander threw the document on the floor and said that the judge needed to change the report, as previously instructed, or he too would go to prison.438 The two other judges were charged with gross min imization of the genocide. They spent more than 14 months in detention and were eventually acquitted in October 2006.439 Police and military presence at gacaca trials often appeared to create anxiety among local residents. The 2004 Gacaca Law allows security agents to be present during trials, both to ensure order and to participate as members of the community, but is silent on whether they may bear arms.440 It is customary to see security agents in conventional courts but their 437 Human Rights Watch interview with two gacaca judges from the Northern Province, Kigali, November 28, 2006. 438 Human Rights Watch interview with person knowle dgeable about the case, Gitarama, July 21, 2006. 439 Prosecutor v. Berchimas Munyurabatware et al., Judgment, Court of Higher Instance, Muhanga, Case No. RPGR 20828/S1/05/MA/MR, October 11, 2006. 440 2004 Gacaca Law, art. 71.

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93 Hum an Rights Watch | May 2011 presence in the more informal gacaca courtsparticularly when armed and in uniform seemed to influence participants willingness to speak out in gacaca proceedings. In general, Human Rights Watch observed less community part icipation when police officers or soldiers attended proceedings. Some participants told Hu man Rights Watch that they were fearful of speaking out when police or soldiers came to gacaca trials and worried that they might be arrested.441 In some cases armed police or soldiers delibe rately misused their position of authority at hearings to influence witnesses and community members. For example in one hearing in 2007, a Human Rights Watch monitor overheard a member of the civil party, an influential man who worked at the local hospital, say on the phone that he would send a car to bring people to the hearing. Approximately 30 minutes later, a car belonging to the hospital, which the man often drove, arrived at the site where gacaca proceedings were under way. The car carried three police officers: the local police commander and two armed officers. All three joined the hearing and remained there throughout its duration. At the end of the hearing, the trial was not completed and the accused was free to leave. However, the Human Rights Watch monitor saw the police commander lead the accused into the hospitals car with the other two police o fficers and overheard the commander say, You wont escape me. A large number of local re sidents, including genocide survivors who had testified in defense of the accused, stood in front of the vehicle and blocked the road to prevent the police from detaining the accused. After a few minutes, the police managed to disperse the crowd and took the accused to the police station.442 He remained in detention until the next hearing the following week. Seve ral people told Human Rights Watch that the accusations against him were false.443 During the hearing, Human Rights Watch heard some of the same individuals, including a local gacaca judge who had not participated in the case, testify that the civil party had tried to pressure them into accusing the man.444 The trial and appellate courts both acquitted the man, but a gacaca court convicted him of genociderelated charges and sentenced him to 19 ye ars imprisonment at the revision level.445 441 Human Rights Watch interviews with local residents, Mukinga, June 6, 2008; Human Rights Watch interviews with local residents, Ngoma, October 16, 2007. 442 Human Rights Watch, trial observations, Case of Martin Mb arushimana, Jurisdiction of Mpembe, Gishyita Sector, Karongi District, Western Province, October 16, 2007. 443 Human Rights Watch interviews with lo cal residents, Mpemba, October 16, 2007. 444 Human Rights Watch, trial observations, Case of Martin Mb arushimana, Jurisdiction of Mpembe, Gishyita Sector, Karongi District, Western Province, October 16, 2007. 445 Human Rights Watch telephone interview with relative of accused, September 22, 2010.

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Justice Compromised 94 In the trial of former presidential candidate Thoneste Niyitegeka in 2008, four soldiers arrived more than an hour after the hearing ha d begun and went to the front of the crowd, momentarily disrupting the proceedings and making their presence well known.446 Later the same day, a military police vehicle arrived and parked next to the place where proceedings were taking place while the judges were deliberating, causing fear among the population and leading some to believe that the outcome of the trial was predetermined.447 In another case, several uniformed police offi cers sat with the civil party and were seen talking together throughout the trial. Their pres ence led some residents to conclude that the polices support of the civil party meant that the accused would be convicted and deterred at least two individuals from speaki ng out in the accuseds defense.448 Gacaca as a Means of Resolving Personal Grievances In gacaca there were a lot of personal disputes that had nothing to do with the genocide. Genocide survivor, Butare, August 14, 2009 Between 2005 to 2010, Human Rights Watch documented dozens of cases in which individuals used gacaca to try to settle personal scores, falsely accusing someone of genocide or genocide-related crimes. In most instances, both the accuser and the accused had resided in Rwanda for more than a decade and the accuser offered no reason for having failed to make the allegations sooner (e.g. du ring the information gathering phase). Ethnic hostility between Hutu and Tutsi sometimes a ppeared to explain the behavior, but usually simple personal grievances and financial mo tives were the cause. Human Rights Watchs trial monitoring suggests that such cases in creased from around 2007, perhaps in part because people saw how the process worked and felt increasingly confident that they could use gacaca to resolve disputes over land, inheritance, and local economic inequalities. A dramatic increase in such cases in late 2007 and early 2008 led international organizations following the gacaca process to call on the SNJG to announce an end date for gacaca. There is no statute of limitations for ge nocide, which means that any cases arising after a cut-off date would be handled by the conventional courts. These courts would have trained legal professionals to properly review new cases and to help identifyand hopefully 446 Human Rights Watch, trial observations, Case of Thoneste Niyitegeka, Jurisdiction of Gihuma, Nyamabuye Sector, Muhanga District, Southern Province, February 5, 2008. 447 Human Rights Watch interviews with local residents, Gihuma, February 5, 2008. 448 Human Rights Watch interview with local resi dents, Kibilizi Sector, May 20 and 27, 2008.

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95 Hum an Rights Watch | May 2011 discouragefalse accusations.449 The SNJG dismissed these concerns in a meeting with the international organizations and appear not to have considered the proposal.450 Cases of false accusations based on personal vende ttas and other outside interests continued throughout 2009 and 2010. An illustrative case of how gacaca risks being misused to settle personal scores is one in which a family used gacaca to try to settle a land dispute under a 1959 agreement involving a neighbor and his son.451 One family accused their neighbor and his son of genocide. While the gacaca court acquitted the father,452 it convicted and sentenced the son to 30 years in prison.453 During the trial, the civil party bringing the case acknowledged that the families had a land dispute, but denied that this was why his family had brought genocide allegations to court.454 The trial court believed him. 455 However, the appeals court accepted evidence that the civil party had made false accusations and had tried to use gacaca to settle the old score over land and convicte d the civil party of perjury; a second gacaca appeals court overturned that decision.456 In another case, a man who in 1994 had lived in the northwestern town of Gisenyi was accused of committing genocide-related crimes more than 125 kilometers away in Kibuye, his native town where he returned after the genocide. According to the accused, the case arose out of a private dispute he had with the family of a local genocide survivor. The genocide survivors child had stolen items fr om his house in March 2000 and was ordered to pay back 20,000 Rwandan francs (approximate ly US$33). According to the accused, the survivorwho had served as the Ibuka representative in the communitythen brought genocide-related accusations against him in reta liation for having raised the theft case with 449 ASF, HRW, and PRI,Lettre Aux Autorits Judiciaires sur le Nouveau Projet de Loi Gacaca 2008, May 19, 2008, p. 1. 450 Human Rights Watch interview with SNJG Executive Secretar y Domitilla Mukantaganzwa, Kigali, March 11, 2008. ASF and PRI heads of mission were also present at the meeting. 451 Human Rights Watch, trial observations, Case of Clestin Nzab anita, Jurisdiction of Zoko, Mu tete Sector, Gicumbi District, Northern Province, September 6, 2006. Several local residents, including a gacaca judge who was not among those deciding the sons case, told Human Rights Watch that the case was completely unrelated to the genocide. Human Rights Watch interviews with gacaca judge and local residents, Zoko, September 6, 2006. 452 Human Rights Watch, trial observations, Case of Etienne Rutu ngura, Jurisdiction of Zoko, Mu tete Sector, Gicumbi District, Northern Province, July 19 and 26, 2006. 453 Human Rights Watch, trial observations, Case of Clestin Nzab anita, Jurisdiction of Zoko, Mutete Sector, Gicumbi District, Northern Province, June 4, 2007. 454 Human Rights Watch, trial observations, Case of Clestin Nzab anita, Jurisdiction of Zoko, Mu tete Sector, Gicumbi District, Northern Province, September 6, 2006. 455 Human Rights Watch, trial observations, Case of Clestin Nzab anita, Jurisdiction of Zoko, Mu tete Sector, Gicumbi District, Northern Province, June 4, 2007. 456 Human Rights Watch, trial observations, Case of Simon Kamo nyo, Jurisdiction of Zoko, Mu tete Sector, Gicumbi District, Northern Province, September 6, 2006.

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Justice Compromised 96 local authorities.457 The accused managed to prove that he was 125 kilometres away in Gisenyi at the time of the massacres and that he arrived in Kibuye late r in 1994. However, he admitted to having been in possession of a gren ade, allegedly for protection (he later turned it over to the RPF once they had taken control of the country). The gacaca court convicted him of illegal possession of a grenade during the genocide and imposed a 19-year prison sentence; his request for revision of the judgment was denied.458 Cases can also involve parties who have competing business interests. The case of Aphrodis Mugambira, a businessman in Kibuye who owns a hotel and other valuable property in the area, is a striking example of personal interests driving gacaca cases, as well as of the violation of the right not to be tried twice for the same crime. Mugambira spent nearly 10 years in prison without trial after the genocide before finally being prosecuted. In November 2002, a conventional court convicted him as a category 1 offender, but the decision was reversed on appeal in 2003 and he was acquitted.459 During his detention, a former high-ranking government official had appropriated Mugambiras hotel.460 After Mugambiras release, the official, perhaps worried that Mugambira would want to reclaim his land, joined forces with an influential policeman and other businessmen in the area to bring renewed charges against him in gacaca.461 In August 2008, police rearrested Mugambira on the very same charges for which he had already been tried in the conventional courts. The gacaca court convicted him and sentenced him to life imprisonment with special provisions, a decision affirmed on appeal.462 After the SNJG expressed concern about a possible violation of the double jeopardy rule, the case was dismissed at the revision stage.463 This case is an example of the disappointingly infrequent occasions in which the SNJG stepped in to correct procedural errors or miscarriages of justice. The SNJGs intervention in this case resulted in a positive outcome, but the fact that the SNJG had to intervene at all to correct such pr oblems points to the inherent weaknesses within the appeals mechanisms and the gacaca system as a whole. 457 Human Rights Watch, trial observations, Case of Jean-Pierre Ka nani, Jurisdiction of Mukura Sector, Karongi District, Western Province, December 17, 2009. 458 Human Rights Watch, trial observations, Case of Jean-Pierre Kanani, Jurisdiction of Mukura Sector, Karongi District, December 24, 2009. 459 Prosecutor v. Aphrodis Mugambira, Judgment, Court of First Instance, Kibuye, RP.ch.Sp. 007/01/2000, November 29, 2002; Appeals Judgment, Appeals Court, Ruhengeri, RPA218/R1/GC/RUH, October 16, 2003. 460 Human Rights Watch interview with person knowledgeable about the case, Kigali, March 22, 2010; Human Rights Watch interview with relative, Kigali, January 29, 2010. 461 Human Rights Watch interview with person know ledgeable about the case, Kigali, March 22, 2010. 462 Human Rights Watch, trial observations, Case of Aphrodis Mugambira, Jurisdiction of Bwishyura Sector, Karongi District, Western Province (with SNJG-appointed bench from Gikondo Sector, Kicurkiro District, Kigali), August 30, 2008; Human Rights Watch, trial observations, Case of Aphrodis Mugambira, Jurisdic tion of Bwishyura, Karongi Di strict, Western Province (with SNJG-appointed bench from Gikondo Sector, Kicurk iro District, Kigali), September 26-27, 2009. 463 Human Rights Watch, trial observations, Case of Aphrodis Mu gambira, Jurisdiction of Bwishyura, Karongi District, Western Province (with SNJG-appointed bench from Nyarugunga Se ctor, Nyarugenge District, Kigali), March 5-6, 2010.

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97 Hum an Rights Watch | May 2011 Another case involved a genocide survivor wh o had hidden in a mans house to escape the killings, but who later fell out with the man. Once appointed as a gacaca judge, the genocide survivor brought charges against her former rescuer, apparently because he had not married her. At trial and again on appeal, the accused claimed that the allegations were false and had been brought as retaliation for their falling ou t as friends. He pointed to the fact that all of the witnesses against him belonged to the womans family.464 Several community members, including genocide su rvivors, confirmed that the tw o had been close friends and that the relationship had soured when the accused declined to marry the woman.465 The trial court acquitted him. At the appeal hearing, one of the judges had to be disqualified because he was related to the woman.466 The appeals court then affirmed the acquittal, but the police detained him on allegations that he had tried to bribe the woman to drop the case. A conventional court acquitted him on those char ges too, but again the police kept him in custody pending a revision of the original case.467 Despite no new evidence or proof of manifest error in earlier proceedings, the gacaca court convicted him on the charges of involvement in the death of a woman and a genocidal attack in the area and sentenced him to 15 years imprisonment.468 In a 2008 case, two nurses at Gahini Hospital in eastern Rwanda had fallen out shortly after the genocide, leading one to accuse the other of having refused to suture the wounds of a young Tutsi boy injured in the genocide (who was later killed at the hospital).469 During the trial, other genocide survivors accused the woma n of hating Tutsi, although they provided no evidence. The court convicted the wo man and sentenced her to 15 years imprisonment.470 One of the trial level judges was known to have a personal conflict with the accuseds family in connection with their local parish.471 The judgment was overturned on appeal, but at the revision stage, the court again convicted the woman and sentenced her to six years imprisonment with conversion of the prison sentence into community service.472 464 Human Rights Watch, trial observations, Case of Alexandre Nyamutera, Jurisdiction of Museny i, Mushishiro Sector, Muhanga District, Southern Province, October 2, 5, 30, 2007. 465 Human Rights Watch interviews with local reside nts, Mushishiro Sector, October 2 and 5, 2007. 466 Human Rights Watch, trial observations, Case of Alexandre Nyamutera, Jurisdiction of Museny i, Mushishiro Sector, Muhanga District, Southern Province, October 30, 2007. 467 Prosecutor v. Alexandre Nyamutera, Judgment, Court of Higher Instance, Muha nga, Case No. RPGR2278/S1/07/07/TGI/MHG, January 11, 2008. 468 Human Rights Watch, trial observations, Case of Alexandre Nyamutera, Jurisdiction of Musenyi Sector, Muhanga District, Southern Province, April 30 and May 7, 2009. 469 Human Rights Watch interview with person knowledgeable about the case, Kigali, May 31, 2008; Human Rights Watch interview with NGO observer who attended the trial, Kigali, June 12, 2008. 470 Human Rights Watch, trial observations, Ca se of Esperance Iribagiza, Jurisdiction of Gahini Sector, Kayonza District, Eastern Province, May 15, 22, 29, 2008. 471 Human Rights Watch interview with person knowledgeable about the case, Kigali, May 31, 2008. 472 Human Rights Watch, trial observations, Ca se of Esperance Iribagiza, Jurisdiction of Gahini Sector, Kayonza District, Eastern Province, August 14, 2008 and September 11, 2008.

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Justice Compromised 98 In some cases, gacaca was allegedly even used within families to settle arguments. In a 2009 case, a female gacaca judge was said to have resented her sister over their inheritance when their parents died. She used her status in the community to persuade others to accuse her sister of genocide-related offenses. After a gacaca court had convicted her sister, several residents in the community, including genoci de survivors, jointly wrote to the SNJG explaining what had happened. The SNJG intervened and the woman was released.473 Silencing Opponents and Critical Voices Private citizens were not the only ones to manipulate the gacaca process for personal ends. Government officials and influential poli ticians also lodged allegations with gacaca courts in contexts which strongly suggest that the goal was to silence outspoken critics and potential political opponents. The case of Dr. Thoneste Niyitegeka Dr. Thoneste Niyitegeka, a surgeon at a ce ntral Rwandan hospital, who cared for many wounded persons during the genocide, ran into problems shortly after he decided to run for President in the 2003 elections. His candidacy was rejected and he filed a complaint, after which the police detained him for three days of questioning on statements he had recently made.474 After his release, Dr. Niyitegeka contin ued practicing medicine, and occasionally commented on Rwandan politics in the local and foreign press. In 2005 he criticized gacaca in a radio interview with the Voice of America. After the police interrogated him about his comments on the program, Niyitegeka left th e country for a short period, returning to Rwanda after he thought the situation ha d calmed down. Shortly after his return, unidentified persons blew up his car outside hi s house. Soldiers later came to his house and unsuccessfully tried to pressure him into publicly retracting his criticism of gacaca.475 Accusations were then brought against him in gacaca. In October 2007, a gacaca court acquitted him on charges of having turned pati ents over to soldiers to be killed in 1994.476 An appeals court overturned the decision, senten cing Niyitegeka to 15 years imprisonment, 473 Human Rights Watch interview with person knowle dgeable about the case, Kigali, August 27, 2009. 474 US State Deptartment, US Bureau of Democracy, Human Rights and Labor, Rwanda Chapter of the US 2004 Country Reports on Human Rights Practices, February 2004, p. 5, http://www.state.gov/g/drl/rls/hrrpt/2003/27744.htm (accessed September 24, 2010). 475 Review Doctors Genocide Conviction, Human Ri ghts Watch news release, February 15, 2008, http://www.hrw.org/en/news/2 008/02/15/rwanda-review-doctor-s-genocide-conviction. 476 Human Rights Watch, trial observations, Case of Thoneste Niyitegeka, Jurisdiction of Gihuma, Nyamabuye Sector, Muhanga District, Southern Province, October 9 and 30, 2007.

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99 Hum an Rights Watch | May 2011 without providing any explanation for the reversal.477 The decision surprised many because the only two witnesses against Niyitegeka cont radicted themselves and more than a dozen witnessesincluding doctors, nurses, and patientsgave exculpatory testimony.478 One genocide survivor testified that the doctor had provided her with excellent care for a serious wound and that he had treated Hutu and Tutsi patients without distinction. Niyitegeka requested revision of his convic tion, but his request was denied.479 At the time of writing, he remains in prison. The case of Father Guy Theunis Another troubling case which appears to have be en politically motivated is that of Father Theunis, a Belgian priest, human rights activist, and journalist who lived in Rwanda between 1970 and 1994. Theunis was the editor of the periodical Dialogue, originally published in Rwanda and now released in Belgium, which often featured articles critical of the Rwandan government.480 In 1990 Theunis helped launch one of the Rwandas first human rights organizations, the Rwandan Association for the Rights of the Individual and Public Freedoms (ADL). Before and after the genocide, he docume nted human rights violations affecting Tutsi and Hutu alike. Theunis returned to Belgium shortly after the genocide began. He returned to Rwanda briefly in 2004 without facing any problems. However, in September 2005, he was arrested as he transited through Rwanda en route from the De mocratic Republic of Congo to Europe. The prosecutors office hastily cobbled together a case against Theunis, and he was brought before a gacaca court just five days after his arrest (i n stark contrast to the tens of thousands of Rwandans awaiting trial for long periods in prison).481 Theunis was charged with incitement to commit genoci de through his writings. The real impetus for the case appeared to have come from persons hostile to the Catholic Church for its role in the genocide,482 including some high-ranking RPF members who were seeking to gain control of Dialogue and its assets.483 477 Human Rights Watch, trial observations, Case of Thoneste Niyitegeka, Jurisdiction of Gihuma, Nyamabuye Sector, Muhanga District, Southern Province, February 5, 2008. 478 Human Rights Watch, trial observations, Case of Thoneste Niyitegeka, Jurisdiction of Gihuma, Nyamabuye Sector, Muhanga District, Southern Province, January 29 and February 5, 2008. 479 Human Rights Watch interview with Head of the SNJGs Le gal Section, Gratien Dusingizim ana, Kigali, March 20, 2009. 480 Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda, pp. 60-62. 481 Human Rights Watch interview with govern ment minister, Kigali, September 8, 2005. 482 Many have accused the Catholic Church of not simply failing to oppose the genocide but of active complicity in the violence. A number of priests, nuns, brothers, catechists, and Catholic la y leaders supported, participated in, or assisted in organizing killings. See, e.g., Alison Des Forges, Leave None to Tell the Story, pp. 170-172;Timothy Longman, Christian Churches and Genocide in Rwanda, May 1997, http://faculty.vassar.edu/ tilongma/Church&Genocide.html (accessed March 16, 2011). In December 2006, the ICTR convicted Father Athanase Seromba fo r his involvement in the deaths of more than 2,000 Tutsi who

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Justice Compromised 100 A score of witnesses, several of them pr ominent RPF members, denounced Theunis for having supported the genocide. They relied on a distorted reading of some his writings, ignoring, for example, the distinction between his own words and those he was quoting (indicated by quotation marks). His efforts to alert others to the genocide were misrepresented as efforts to discourage intern ational involvement. Some of the witnesses read from prepared statements, highly unusual in gacaca sessions where participants generally speak spontaneously. The case was highly politicized; one high-ranking military officer in the audience remarked to a Human Rights Watch researcher during the proceedings that he was gratified to see the Catholic Church humiliated.484 At Theunis hearing, an estimated 1,700 person s, some alerted by repeated announcements on the radio, attended.485 The usual restrictions on the a ttendance of foreign nationals and on audio and visual recordings were relaxed, apparently to attract greater attention to the proceedings. The gacaca judges concluded the hearing by classify ing Theunis as a category 1 suspect and ordering his trial in the conventional courts.486 Theunis remained in detention. Following a request by the Belgian government, the case was transferred to Belgium in November 2005.487 Belgian police released Theunis (who had returned to Belgium) while they investigated the case. Concluding that the file was empty of any real proof, Belgian judicial authorities have since closed the case.488 Other cases In recent years, several parliamentarians have faced genocide accusations in cases that appear to have little connection to the genocide Alfred Mukezamfura, a journalist who later became a prominent member of parliament after the genocide and was speaker of the had taken refuge in the Nyange parish church. The court found that Seromba had given the order to have the church bulldozed and had later shot some genocide survivors of the attack. He was sentenced to life imprisonment, a decision which was affirmed on appeal. The Prosecutor v. Athanase Seromba, ICTR, Case No. ICTR-2001-66, Judgme nt (Trial Chamber), December 13, 2006; The Prosecutor v. Athanase Seromba, ICTR, Case No. ICTR-2001-66-A, Judgment (Appeals Chamber), March 12, 2008. A number of other priests and persons affiliat ed with the Catholic Church have been pr osecuted for genocide-related crimes and convicted at the ICTR, in gacaca and conventional courts in Rwanda, and in fo reign jurisdictions. However, not all Catholic priests supported the genocide. Several saved or attempted to save Tutsi from the massacres, and some were killed themselves during the genocide. 483 Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda, pp. 60-62. 484 Human Rights Watch conversation with a general of the Rwandan Defense Force, Kigali, September 11, 2005. 485 Human Rights Watch, trial observations, Jurisdiction of Ubumwe Cell, Rugenge Sector, Nyarugenge District, Kigali, September 11, 2005. 486 Ibid. 487 Human Rights Watch, World Report 2006: Rwanda, January 2006, http://www.hrw.org/en/world-report-2006/rwanda. 488 Human Rights Watch interviews with diplomat, Kigali, Septem ber 12, 2007 and with person knowledgeable about the case by telephone, Brussels, October 30, 2007; Human Rights Watc h email correspondence with Belgian diplomat, September 24, 2010.

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101 Hu man Rights Watch | May 2011 Chamber of Deputies from 2003 to 2008, was a ccused of incitement to genocide for the first time in the spring of 2008. Mukezamfura led th e Centrist Democratic Party, which supported Paul Kagames candidacy in the 2003 presiden tial election, but had been known to speak out against the official government line. He traveled to Belgium in March 2008 for medical care, and claimed asylum there after rumors began to circulate inside Rwanda about his involvement in the genocide. Gacaca courts tried him in absentia and sentenced him to life imprisonment with special provisions, having concluded that several of his articles published in the government-run weekly newspaper Imvaho in 1994 had called on the population to take up arms and begin killing Tutsi.489 Another politician, Stanley Safari, who served under the government of Juvnal Habyarimana (the president of Rwanda from 1973 until his assassination in 1994) and who later became a member of parliament for the Prosperity and Solidarity Party (PSP), first faced genocide accusations in the spring of 2009.490 Safari had become increasingly critical of the government. Among other things, he had told a high-level de legation visiting Rwanda to consider whether the country should be admitted to the Commonwe alth, that political parties were restricted from freely expressing them selves and that there was no real democracy in Rwanda.491 Safari fled the country just days before a gacaca court convicted him of genocide, sentencing him to life imprisonment with special provisions.492 Several days later, the Senate expelled him, citing his failure to appear for work. Shortly after he fled, a parliamentary commission heard accusations that Safaris divisionist ideas had caused infighting within the PSP.493 Several months before, Batri ce Nirere, an RPF member of parliament, faced similar problems due to what appeared to have been another RPF me mbers political ambitions. Nirere had been a sous-prfet of Byumba before 1994 and a member of parliament since 489 Mukezamfuras Appeal In admissible, Judge Rules, Hirondelle News Agency, October 20, 2009, http://www.hirondellenews.com/content/view/12871/465 (acce ssed September 24, 2010); Edwin Musoni, Former Speaker Gets Life Sentence, The New Times, September 4, 2009, http://allafrica. com/stories/200909040006.html (accessed September 24, 2010); Human Rights Watch, trial observations, Ca se of Alfred Mukezamfura, Juri sdiction of Nyakabanda Sector, Nyarugenge District, Kigali, Augu st 30 and September 2, 2009. 490 Safari, considered by many to be a moderate Hutu, was a member of the Democratic Republican Movement (MDR) before 1994. He later co-founded the PSP, which formed part of the co alition supporting the RPF in the 2008 parliamentary elections. Safari had previously been convicted of looting as a category 3 offender in 2008 although no other accusations had been leveled against him. Rwandan Legislator s Expel Genocide-Convicted Senator, Hirondelle News Agency, June 11, 2009, http://www.hirondellenews.com/content/view/ 12480/534 (accessed September 27, 2010). 491 5 Ans Aprs: le vieux Snateur Safari Choisit lExil la Prison!, Les Points Focaux, Volume 384, June 7-14, 2009; Human Rights Watch interview with person knowledg eable about the case, Kigali, May 29, 2009. 492 Human Rights Watch, trial observations, Case of Stanley Sa fari, Jurisdiction of Cyarwa-Sumo, Huye District, Southern Province (with SNJG-appointed bench from Kimironk o Sector, Gasabo District, Kigali), May 23, 2009. 493 Exiled Senator Resurfaces Online, Condemns Gacaca, Rwandan News Agency, February 15, 2010, http://www.rnanews.com/index.php?option =com_content&view=article&id=2806:exi led-senator-surfaces-online-condemnsgacaca&catid=17:politics&Itemid=36 (accessed October 12, 2010); L Affaire Safari Continue Faire Couler Beaucoup dEncre, Umuseso, Volume 371, August 31-September 7, 2009, p. 5.

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Justice Compromised 102 2003. During the nationwide information gathering phase for gacaca, noone accused her of any wrongdoing. It was not until several months after she had been re-elected to the lower house of Parliament in September 2008 that genocide-related accusations first surfaced. A gacaca court sentenced her to life imprisonment with special provisions in March 2009, a decision affirmed on appeal.494 At the time of writing, she remains in prison. The RPF member who accused her, who had been lower down on the RPF nominee list than her (and who had therefore not been selected), took over her pa rliamentary seat. Other outspoken critics of the Rwandan governme nt have also faced apparently politicallymotivated accusations in gacaca courts. Lopold Munyakazi, a Rwandan academic in exile, became a target after challenging the government s official discourse on the genocide while teaching in the United States. The Rwandan government reacted by issuing a series of international arrest warrants ag ainst him and later initiating gacaca proceedings against him in his absence. The gacaca case was later dropped at the direction of the SNJG.495 Jean-Lonard Rugambage, an independent journa list, was arrested on genocide accusations in September 2005, just 10 days after he published an article in Umuco newspaper accusing gacaca officials in the Gitarama region of mismanagement and interference with witnesses.496 He was tried in gacaca in November 2005.497 When Rugambage accused one of the judges of bias and called for him to be disqualified, the court sentenced him to one years imprisonment for disrespecting a judge (c ontempt of court). He was later placed in category 1 and set to be tried before the conv entional courts. However, in July 2006, the SNJG stepped in and ordered the journalists release due to a lack of evidence and procedural irregularities. The Committee to Pro tect Journalists argued that Rugambage was a victim of abusive procedures designed to punish him for critical reporting.498 On June 24, 2010, an unknown assailant shot and killed Rugambage outside his home, the same day that the newspaper he worked for, Umuvugizi, published an article alleging the 494 MP sentenced to life for Genocide, The New Times, March 2, 2009, http://allafri ca.com/stories/200903020004.html (accessed October 8, 2010); Human Rights Watch, trial observations, Case of Batrice Nirere, Jurisdiction of Kanombe Sector, Kicukiro District, Kigali, June 25-26 and July 2 and 9, 2009. 495 See above, section VI, Politically motivated in absentia trials 496 Committee to Protect Journalists, Rwandan Journalist Freed After 11 Months in Jail, July 31, 2006, http://cpj.org/2006/07/rwandan-jo urnalist-freed-after-11-months-in-jail.php (acc essed October 9, 2010); Committee to Protect Journalists, Attacks on the Press 2006 : Rwanda, February 7, 2007, http://cpj.org/2007/02/attacks-on-the-press-2006rwanda.php (accessed October 27, 2010). See also Amnesty Internat ional, Freedom of Expression Under Attack, AI Index: AFR 47/002/2006 January 23 2006, http://www.amnestyusa.org/do cument.php?lang=e&id=ENGAFR470022006 (accessed October 9, 2010). 497 Committee to Protect Journalists, Rwandan Journalist Freed Af ter 11 Months in Jail, July 31, 2006; Committee to Protect Journalists, Attacks on the Press 2006: Rwanda, February 7, 2007. 498 Committee to Protect Journalists, Rwandan Journalist Freed After 11 Months in Jail, July 31, 2006. See also Amnesty International, Freedom of Expressi on Under Attack, January 23, 2006.

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103 Hu man Rights Watch | May 2011 involvement of senior Rwandan government officials in the attempted assassination of former Rwandan general (turned outspoken gove rnment critic), Faustin Kayumba Nyamwasa, the previous week in South Africa.499 The government prosecuted two men for Rugambages murder. One of the men had immediately confe ssed upon arrest, and claimed that he and his co-accused were avenging the death of a brother whom they alleged was killed by Rugambage during the genocide.500 These allegations had formed the basis of the case against Rugambage in gacaca but were never proven, and Rugambage had not been convicted of murder. In October 2010, both men were convicted and sentenced to life imprisonment.501 One of them was ordered to commence his sentence immediately; however, the seconda police officer was allowed to remain free on bail pending an appeal scheduled for July 2011.502 Human Rights Watch conducted its own investigation into Rugambages murder and identified several leads suggesting Rugambage may have been murdered in retaliation for his critical reporting. Rugambage had also comp lained of increased surveillance in the days before his murder. However, there is no evidence that the police made any effort to explore these leads, and advised Human Rights Watch that their investigation was closed after one of the suspects confessed.503 The police exclusively presented the theory that this was a revenge killing linked to events in 1994, in an apparent attempt to exclude the possibility of official collusion in Rugambages murder. 499 Rwanda: Stop Attacks on Journali sts, Opponents, Human Rights Watc h news release, June 26, 2010, http://www.hrw.org/en/news/2010/06/26/rwa nda-stop-attacks-journalists-opponents. 500 Edwin Musoni, Two Arrested over Journalist Murder, The New Times, June 28, 2010, http://newtimes.co.rw/index.php?issue= 14305&article=30736 (accessed October 27, 2010); Edwin Musoni, Suspected Journalist Killers Named, The New Times, July 9, 2010, http://allafrica.com/stories/201007090032.html (accessed October 27, 2010). 501 Human Rights Watch, trial observations, Prosecutor v. Didas Nduguyangu and Antoine Karemera, Kigali High Court, Case No. RP007/10/HCKig, October 29, 2010. 502 Ibid. See also Human Rights Watch, trial observations, Prosecutor v. Didas Nduguyangu and Antoine Karemera, Supreme Court, Case No. RP007/10/HCKig, March 14, 2011. 503 Human Rights Watch interview with spokesperson for the Rwandan National Police, Eric Kayiranga, Kigali, July 23, 2010.

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Justice Compromised 104 VIII. Independence and Impartiality of the Gacaca Process The creation of gacaca was a good thin g because it allowed the population to play a large role in the gacaca proces s. But I deplore you [the judges] for taking sides Man testifying as a witness in gacaca, Save, September 18, 2008 Gacaca judges try cases relating to events that happened in their own area. Having lived through the genocide, many have their own strong views about what happened and know some or all the parties in any given case, whet her they are relatives, friends, neighbors or business partners. Rwandan and international observers believe these factors have given rise to potential conflicts of inte rest or inherent partiality, and that with even the best will in the world, most gacaca judges inevitably struggle to evaluate evidence impartially. Gacaca has also seen widespread corruption and a pattern of political interference with the judiciary. Both phenomena occur in the conventi onal justice system too but appear to have been more pronounced in gacaca. Judges were not the only ones who profited: accused persons and genocide survivors also sought pe rsonal gain by engaging in corruption. At times local officials, particular ly district coordinators, interf ered with the decision-making process. Both the lack of independence of the courts and corruption weakened public confidence in the system and led to decisions that did not reflect what really happened during the genocide. Potential Conflicts of Interest for Judges As discussed above, to date the SNJG has removed more than 45,000 gacaca judges from their positions because of accusations of their involvement in the genocide. Many of these judges were tried in gacaca courts after they were dismissed from their position.504 Judges who are themselves genocide survivors of the ge nocide or who lost close relatives may also have found it hard to remain impartial. But be yond these clear-cut cases, it has not always been easy to identify less obvious conflicts of interest, such as little known family or business ties to key parties in a case. 504 Remarks by Head of the SNJGs Legal Sect ion, Gratien Dusingizimana, at National Unity and Reconciliation Week Conference, Kigali, December 9, 2009. The power point pr esentation featured at the conference ca n be found on the SNJG website under the heading Gacaca Jurisdictions: Achievements Problems, and Future Prospects, http://www.inkikogacaca.gov.rw/En/EnIntroduction.htm, p. 23 (accessed March 15, 2010).

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105 Hu man Rights Watch | May 2011 In one case that demonstrates the emotiona l vulnerability of judges, a judge accused a woman of involvement in the death of her own child. The woman replie d: You people said we should tell the truth and yet you are a judge and you dont tell the truth. In response the judge shouted, Keep quiet! I know that my child will never rise again from death.505 Human Rights Watch has not documented many case s involving such emotional exchanges with judges, but the case illustrates the difficultie s some judges have in putting aside their personal experience when deciding gacaca cases. One gacaca judge, who is a genocide survivor, openly told Human Rights Watch that she found it difficult to remain impartial in many cases because the victims and the accused were all neighbors.506 However, there were also many judges who are genocide survivors, and who showed no bias, demonstrating an apparent capacity to put aside their feelings and focus on the evidence at hand. Under the law, a judge must disqualify himor he rself if (i) one of the parties is a spouse or relative (defined as parents and siblings all the way to the le vel of cousin), (ii) a serious conflict or a close friendship exists between the judge and one of the parties, or (iii) the judge is the guardian of one of the parties.507 Usually, at the beginning of each trial, the presiding judge asks the parties if anyone has an objection to any of the judges. If someone raises an objection, the judges withdraw to decide on the matter. Many cases are resolved properly, but Human Rights Watch documented a number of cases where judges refused to disqualify themselves in these situations.508 Corruption and Pers onal Gain through Gacaca Many Rwandansgenocide survivors, accused, witnesses, and judges aliketold Human Rights Watch that, over the years, gacaca became a lucrative business. Almost everyone interviewed agreed that corruptio n affected decision-making in gacaca courts. Some spoke about their own stories or about cases of which they had direct knowledge. Cases included judges accepting bribes from wealthy accused persons in exchange for acquittals or asking the accused to pay mone y in exchange for an acquittal; genocide 505 Human Rights Watch, trial observations, Jurisdiction of Muboni, Gishamvu Sector, Huye District, Southern Province, September 9, 2002. 506 Human Rights Watch interview with gacaca judge, Ngororero District, West ern Province, August 10, 2009. 507 2001 Gacaca Law, art. 16; 2004 Gacaca Law, art. 10. Once disqualified, the former judge is then free to participate as a witness in the proceedings. 508 Human Rights Watch, trial observations, Case of Franois -Xavier Byuma, Jurisdiction of Biryogo Sector, Nyarugenge District, Kigali, May 13 and 27, 2007; Human Rights Watch, trial observat ions, Case of Jean-Npomuscne Munyangabe, Jurisdiction of Kibilizi Sector, Nyanza District, Southern Province, May 20, 2008; Human Rights Watch, trial observations, Case of Jean-Leonard Rugambage, Jurisdiction of Mugina Sector, Kamonyi District, Southern Province, June 7 and 14, 2006; Human Rights Watch interview with NHRC gacaca monitor who observed appeal proceedings in th e case of Aphrodis Mugambira, Kibuye, March 5, 2010.

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Justice Compromised 106 survivors accusing wealthy people in the commu nity of crimes in order to receive monetary compensation to drop the case; witnesses taking bribes from the accused; and civil parties bringing cases in exchange for making false allegations, changing their testimony, or defending an accused person. The SNJG has been aware of such corruption and, in some cases, the police attempted to arrest those responsible. The SNJG told Human Rights Watch that it does not keep statistics on such cases.509 Human Rights Watch also asked Rwandas Ombudsman for his views on the issue of corruption in gacaca, but he declined to provide any information.510 In January 2008, the SNJG executive secretary reported that 56,000 ineffective or corrupt judges had been removed from service.511 It was not clear how many of these cases involved corruption instigated by judges as compared to judges accepting payment from one of the parties to a case. On the basis of its own research and observations, Human Rights Watch believes that ther e were many more undetected cases. Corruption also occurs in the conventional courts, although the phenomenon of money physically changing hands between judges and parties does not appear to be as pervasive as in gacaca, according to Human Rights Watchs research. In a 2008 report, the Office of the Ombudsman ranked the judiciary as the second most corrupt state institution, falling after the traffic police.512 In February 2011, the chief justice of the Supreme Court denounced the continued problem of corruption in the conv entional courts and reiterated that the government intends to prosecute offenders.513 Judges requesting bribes In gacaca, the largest number of corruption-related cases documented by Human Rights Watch involved judges taking bribes from accu sed persons. As one accused said: You have to give money. Gacaca judges were not paid so they sometimes made arrangements to receive money from those who were accused.514 Several genocide survivors who saw 509 Human Rights Watch interview with SNJG Executive Secr etary Domitilla Mukantaganzwa, Kigali, August 17, 2009. 510 Human Rights Watch interview with Ombudsman Tito Rutaremara, Kigali, August 18, 2009. 511 Gacaca Trials Could Also Try First Category Defendants, Hirondelle News Agency, January 4, 2008, http://www.hirondellenews.com/content/vie w/10460/309 (accessed (March 17, 2010). 512 Office of the Ombudsman, Annual Activity Report 2008, July 2009, https://www.ombudsman.gov.rw/Documents/Rapport%20UMUVUNYI%2020085.pdf (accessed March 16, 2011), p. 65. The report provoked controversy and was denounce d by many senior justice officials but no netheless resulted in the sacking of 23 court officials, including judges and cour t registrars. See also Felly Kimenyi, Revoke Report, Officials Demand Ombudsman, The New Times, July 14, 2009, http://allafrica.com/stories/20090714 0173.html (accessed March 16, 2011); Eugene Mutara, Judiciary Wields Axe on Corrupt Staff, The New Times, September 18, 2009, http://allafrica.com/stories/200909210300.html (accessed March 16, 2011). 513 Chief Justice Warns against Corruption in Justice Sector, ORINFOR, February 8, 2011, http://www.orinfor.gov.rw/printmedia/top story.php?id=2187 (accessed February 9, 2011); Edwin Musoni, Corruption Cases to be Heard in One Week, The New Times, February 8, 2011, http://www.newtimes.co.rw/inde x.php?issue=14530&article=38119 (accessed February 9, 2011). 514 Human Rights Watch interview with accused, Kigali, August 26, 2009.

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107 Hu man Rights Watch | May 2011 accused persons walk free despite strong evidence against them agreed, as did the genocide survivor organization Ibuka.515 Penal Reform International (PRI) reported an increase in the number of corruption cases after gacaca trials accelerated in 2007 and after gacaca activities were listed as a component in local government performance contracts (benchmarks set by the national government).516 In a number of cases, judges used intermedia riespersons known to both the judge and the accusedto contact the accused or his or her family to request money in exchange for an acquittal.517 The accused or the family paid in cash wrote checks, or deposited money into the intermediarys bank account. The amou nts paid depended in large part on the socioeconomic status of the accused, with documented cases ranging from 100,000 Rwandan francs (approximately US$165) to 5 million Rwandan francs (approximately US$8,200). In a 2009 case, the accused wrote a check but then reported the incident to the police who forced the intermediary to return the check and arrested the intermediary.518 In another case, a priest told the police that afte r his acquittal, one of the judges approached him and asked for money so that the judge could discourage the civil party from appealing the verdict. Police arrested the judge and he was prosecuted in a conventional court.519 More often, however, the transaction went ahead as planned and the accused received a favorable resolution to his or her case, as documented below. In some cases, the initial payment turned out no t to be enough to secure an acquittal. In a 2009 case in Kigali, a man paid an intermediary 100,000 Rwandan francs (approximately US$165). Soon after, the intermediary return ed and said that the judges would require a further 300,000 Rwandan francs (approximately US$495) to guarantee an acquittal, to be paid when the case was over.520 The man was acquitted and he paid the remaining funds. Human Rights Watch documented a similar case in another part of Ki gali, where an accused paid a total of 1.3 million Rwandan francs (US$ 2,140), some before and some after, to help secure an acquittal.521 515 Human Rights Watch interview with genocide survivor, Ngoror ero District, August 10, 2009; Human Rights Watch interview with genocide survivor, Kamonyi District, August 12, 2009. Gacaca Trials Could Also Try First Category Defendants, Hirondelle News Agency, January 4, 2008, http://www.hirondellenews.com/cont ent/view/10460/309 (accessed September 28, 2010). 516 PRI, Rapport de Monitoring et de Recherche sur laGacaca: Les Tmoignages et la Preuve devant les Juridictions Gacaca, August 2008, http://www.penalrefor m.org/files/rep-2008-gaca ca11testimonyandproof-fr.pdf (accesse d September 28, 2010), pp. 56-59. 517 Human Rights Watch interview with accused, Kigali, August 17, 2009; Human Rights Watch interview with accused, Kigali, August 19, 2009; Human Rights Watch interview with accused, Kigali, August 19, 2009; Human Rights Watch interview with relative of accused, Kigali, August 20, 2009; Human Rights Watch interview with husband of accused, Kigali, August 27, 2009. 518 Human Rights Watch interview with accused, Kigali, Augu st 19, 2009; Human Rights Watch interview with person knowledgeable about the case, Kigali, August 17, 2009. 519 Prosecutor v. Daniel Murinda, Court of Higher Instance, Gasabo, Case No. RPGR 103344/S1/2007/MAB (pending). 520 Human Rights Watch interview with accused from Nyarugenge District, August 17, 2009. 521 Human Rights Watch interview with accused from Kicukiro District, July 31, 2009.

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Justice Compromised 108 In a few cases, the accused or his or her relati ves refused to pay a bribe. In a 2009 case, a man (correctly, as it turned out) felt confid ent that his wife would be acquitted of any wrongdoing in gacaca and declined to pay. She was later acquitted.522 For others, failure to pay a bribe resulted in a conviction.523 In most cases, only one or a few of the ju dges were involved in the arrangement. One genocide survivor recounted that a large number of cases had to be reviewed in her sector because the district coordinator had cooperated with judges in taking bribes from accused persons.524 In a few isolated cases, judges approa ched accused persons known to have paid bribes in the past to seek similar remuneration to make new cases g o away" or to acquit them in such cases.525 Accused persons seeking exoneration Human Rights Watch also documented cases in which the accused approached judges or genocide survivors, either directly or through an intermediary, and offered them money in exchange for an acquittal or to encourage the vict im to drop the case. In some of these cases, the person admitted to Human Rights Watch resear chers that they were guilty, but said that they did not want to suffer the humiliation of a conviction or to be sent to prison. In other cases, individuals maintained their innocence, but said they had offered to pay a bribe because they were afraid they would be convic ted on the basis of outside considerations, or because they did not have sufficient defense witnesses to help prove their innocence. In a 2009 case in Kigali, an accused mans brother approached one of the gacaca judges whom he knew personally and asked her whethe r she would be willing to accept money in exchange for an acquittal. The judge consented, but the case was later transferred to another jurisdiction for a new trial. The brother appr oached one of the new judges and paid him 100,000 Rwandan francs (approximately US$165 ). The court nonetheless convicted the man and sentenced him to 19 years in prison. On ap peal, the brother paid the presiding judge, a friend of the family, 250,000 Rwandan francs (approximately US$412) to be split between the five judges. The court still convicted the man but imposed a reduced sentence, less than the period of time the man had already spent in pr e-trial detention. He was therefore released.526 522 Human Rights Watch interview with husba nd of accused, Kigali, August 17, 2009. 523 Human Rights Watch interview with husband of accused, Kigali, August 27, 2009. 524 Human Rights Watch interview with genocide survivor, Gitara ma, August 10, 2009. The SNJG later replaced the district coordinator. 525 Human Rights Watch interview with person knowle dgeable about two cases, Kigali, August 26, 2009. 526 Human Rights Watch interview with brother of the accused, Kigali, August 20, 2009.

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109 Hu man Rights Watch | May 2011 Another man told Human Rights Watch that his family had offered judges 120,000 Rwandan francs (approximately US$198) in exchange for an acquittal.527 They accepted and he was acquitted in 2009. In another case, a man confessed to bribing a gacaca judge in order to secure an acquittal and was prosecuted for corruption in a conventional court. The court sentenced the man to eight years imprisonment and imposed a fine am ounting to double what he had paid to the gacaca judge.528 The prosecutor also argued that the act of bribing a gacaca judge indicated that the accused was minimizing the gravity of the genocide. The court disagreed and acquitted the man of that charge in 2008.529 Human Rights Watch documented only one case in which an accused o ffered to pay a victim in exchange for the victim dropping the case A rape victim told Human Rights Watch she had accepted money from a man who raped he r during the genocide in exchange for dropping the case.530 Genocide survivors seeking compensation Many genocide survivors destitution and frustration at the lack of compensation for their losses and injuries explained, at least in pa rt, why some approached accused persons and offered to drop the case against them in exchange for money.531 Human Rights Watch documented only a handful of such cases, al l of which involved intermediaries. In one particularly troubling case in 2009, a civil party and several other genocide survivors in the community offered to drop a case against an accused woman in exchange for payment, but later denounced the woman for corruption when she was unable to pay an additional sum requested of her.532 Another accused, Jean-Npomuscne Munyangabe whose case has already been discussed, requested the disqualification of the presid ing judge because he suspected that he had taken a bribe from the civil party bringing the case.533 After the presiding judge refused to 527 Human Rights Watch interview with accused, Kigali, August 26, 2009. 528 Prosecutor v. Augustin Bapfakubaka, Judgment, Court of Higher Instance, Ruba vu, Case No. RP 0189/08/TG/RBV, November 28, 2008. 529 Ibid. 530 Human Rights Watch interview with rape victim, Kamonyi District, August 12, 2009. 531 PRI, Rapport de Monitoring et de Recherche sur la Gacaca: Les Tmoignages et la Preuve devant les Juridictions Gacaca, August 2008, http://www.penalreform.org/files/rep-2008-gacaca11testimonyandproof-fr.pdf (accessed September 28, 2010), pp. 50-52. 532 Human Rights Watch interview with person knowle dgeable about the case, Kigali, August 17, 2009. 533 See above, section VI, The stor y of Jean-Npomuscne Munyangabe.

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Justice Compromised 110 disqualify himself, Munyangabes younger brother told the community members attending the hearing that he had witnessed private meet ings between the civil party and the presiding judge on two separate occasions, and sugges ted this was evidence that the judge was corrupt. The presiding judge reacted angrily, fo rcing the young man to sit beside the police for the remainder of proceedings and later opening a file against him for perjury.534 A woman who accused a man of involvement in a Tutsi womans death later recanted her testimony after being convicted of perjury. She explained to the court that the victims son, who was the civil party in the case, had given her money, clothes and a metal roof for her house in exchange for her testimony implicating the man.535 In another case, a housekeeper accused her employer at gacaca of raping her. The trial court convicted him of genocide-related charges, bu t the rape charge was not considered because it was a category 1 offense. At his appeal, th e housekeeper retracted her accusation, saying that her uncle had encouraged her to falsely accuse her employer by promising her a cow.536 External Interference in Decision-Making In some cases, third parties interfered with gacaca proceedings. Most cases involved the district coordinator, who sometimes wielded considerable influence over gacaca judges and the gacaca process more generally. One gacaca judge told Human Rights Watch that the district coordinator regularly influenced decisions in his jurisdiction.537 As discussed earlier, coordinators sometimes failed to deliver su mmonses to the accused and detainees in a timely manner or failed to deli ver release orders (known as billets dlargissements) to prisons, with the result that acquitted person s remained detained. In some of these cases, the omissions appeared deliberate. One troubling case documented by Human Ri ghts Watch is that of Prudence Nsabimana. After being acquitted at trial and on appeal by gacaca courts in the southern part of the country and released from prison, Nsabimana re ported to the SNJG executive secretary that an SNJG legal adviser had conspired with the district coordinator to delay his release from 534 Human Rights Watch, trial observations, Case of Jean-Npomuscne Munyangabe, Jurisdiction of Kibilizi Sector, Nyanza District, Southern Province, May 20, 2008. 535 Human Rights Watch, trial observations, Case of Do Nziraguseswa et al., Jurisdiction of Nyamasheke Sector, Nyamasheke District, Western Province, October 15, 2007. 536 Human Rights Watch, trial observations, Case of Dr. Justin Nsengimana, Jurisdiction of Gishamvu Sector, Huye District, Southern Province, February 19-20, 2010. 537 Human Rights Watch telephone interviews with gacaca judge, September 28, 2009.

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111 Hu man Rights Watch | May 2011 Muhanga prison.538 When the legal adviser learned that Nsabimana had gone to the SNJG to report on him, he worked with the district coordinator again to bring about a new summons for Nsabimanas arrest on corruption charges, which the police executed the following morning.539 The corruption case never saw the light of day, but Nsabimanas original case reappeared at the revision stage. The court convicted Nsabimana of injuring a Tutsi woman and pillaging her vehicle. The court sentenced Nsabimana to 15 years imprisonment, which he is currently serving.540 Equally problematic were cases in which the dist rict coordinator appeared to have directed the course of gacaca proceedings. Usually, the involvement occurred behind the scenes and took the form of district coordinators telling judg es to initiate a case or how to decide a case. Sometimes, district coordinators joined judges during deliberations in a particular case and were said to have improperly influenced their decisions. The motives for district coordinators varied from their own private interests to assist ing relatives or friends who sought to pursue genocide accusations against a person. In one location, Human Rights Watch traced three separate cases against a man to the district coordinator who initiated the accusations. In the first case, the court acquitted the man.541 In the second case, the court said it had no jurisdiction because the allegations were identical to those heard in the first case. In the third case, the court convicted the man and sentenced him to 19 years in prison for the same crimes as in the first case. After the conviction, the genocide survivor organization Ibuka wrote to the SNJG denouncing what had happened and calling for the SNJG to reverse the conviction.542 At the time of writing, the man remains in prison. 538 Human Rights Watch, trial observations, Case of Prudence Nsabimana, Jurisdiction of Bu linga Sector, Muhanga District, Southern Province, October 16 and 30, 2007. 539 Human Rights Watch interviews with local residents, Bulinga, June 2, 2008; Human Rights Watch interview with wife of accused, Kigali, June 9, 2008. 540 Human Rights Watch interview with wife of accused, Kigali, June 9, 2008. The trial took place on June 1, 2008 in the jurisdiction of Bulinga sector. 541 Human Rights Watch, trial observations, Case of Do Nziraguseswa et al., Jurisdiction of Nyamasheke Sector, Nyamasheke District, Western Province, October 15, 2007; Human Rights Watch interview with persons knowledgeable about the case, Kigali, February 2, 2009. 542 Letter from Ibuka members in Kagano Sector, Nyamasheke Distri ct, Western Province to SNJG Executive Secretary Domitilla Mukantaganzwa, September 27, 2008 (copy on file with Human Rights Watch).

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Justice Compromised 112 IX. Rape Cases: the Antithesis of Gacaca Until 2008, genocide-related rape cases were heard in conventional courts. Because only a limited number of women came forward in th e years immediately following the genocide, the government repeatedly encouraged women to re port rape cases by reassuring them that their cases would be heard confidentially in the conventional courts. In May 2008, the government changed course and passed a new law which transferred all such cases to the gacaca courts. The new law provided that the cases be heard behind closed doors (known as huis clos) in order to protect the victims privacy. There were two main problems with this decision First, despite the closed-door nature of the proceedings, placing these cases in gacaca courts meant that entire communities became aware of rape cases involving women who had in itially decided to report the crime because their privacy would be better respected in conv entional courts and their stories told behind closed doors where necessary. As a result, the goal of protecting rape victims privacy was seriously compromised and these womens trust betrayed. Second, the decision to hold the trials behind closed doors in gacaca, which was meant to rely on community participation to challenge the veracity of testimony, led to considerable risks for both victims and the accused. Given the other fair tria l concerns set out above, closed gacaca trials raised grave risks of miscarriages of justice. Gacaca courts derived their legitimacy from popular participation, so hearing these cases behind closed doors undercut the very rationale for using the local courts. While the decision to ho ld these trials behind closed doors was no doubt well-intentioned, it was simply not compatible with the nature of gacaca. As outside observers were not allowed to observe these trials, little firsthand data exists on how rape trials were handled. Human Rights Wa tch conducted more than 20 interviews with rape victims, as well as judges and trauma counselors around the country, who were involved in gacaca hearings. Human Rights Watch also spoke with womens and genocide survivors groups that provided trauma counseling to rape victims whose cases were tried by gacaca. Due to limited access to prisons, Human Rights Watch was unable to conduct interviews with persons accused of rape. The Decision to Tran sfer Rape Cases to Gacaca In May 2008, Parliament adopted a law transferring all category 1 cases to gacaca courts except for cases in which the accused occupied government positions at the prfecture level

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113 Hu man Rights Watch | May 2011 or higher.543 Just over 8,000, or 90 percent of these cases, involved rape or sexual violence.544 The decision to transfer these cases to gacaca came as a shock to many of the rape victims interviewed by Human Rights Watch, some of whom had been reluctant to come forward in the first place and did so only after receiving assurances that their cases would be heard in the conventional courts and not in their lo cal communities. The main womens groups, including Avega (the association of widows of the genocide), Haguruka, Profemme, and the Rwandan Association of Trauma Counselors (ARCT) as well as Ibuka, opposed the transfer of rape cases to gacaca.545 However, the groups said they only met once with senior SNJG officials to raise their concerns and, in the absence of a serious public campaign to make their concerns and opposition well known, the proposal was adopted. Avegas legal representative candidly said, We knew the la w would pass, so we didnt publicly oppose it.546 Another admitted that we didnt perhaps fight as hard as we could have for the rape cases not to be transferred.547 Defending the governments decision, the SNJG s executive secretary told Human Rights Watch that she traveled the country meeting with rape victims who told her that they wanted their cases to be heard by gacaca courts because many of them were dying of HIV/AIDS and wanted to see justice before they died. She said that, after the decision had been taken, she had received only a few letters from wome n who did not want their cases heard in gacaca.548 Of the over 20 rape victims Human Rights Watc h interviewed in different parts of the country (more than a quarter of whom were infected with HIV/AIDS), only one said she preferred her case to be heard before a gacaca jurisdiction, because the procedures were less formal and she could speak more freely.549 Most victims interviewed by Human Rights Watch said they were scared at the thought of speaking in gacaca about their rape and had only reluctantly gone ahead with their cases. 543 2008 Gacaca Law. 544 Human Rights Watch interview with SNJG Executive Secret ary Domitilla Mukantaganzwa, Ki gali, March 11, 2008; Human Rights Watch interview with Head of the SNJGs Legal Section, Gratien Dusingizimana, Kigali, November 25, 2008. 545 Human Rights Watch interview with Avega Head of Advocacy, Ju stice, and Information Sabine Uw ase, Kigali, August 8, 2009; Human Rights Watch interview with Haguruka Executive Secretary Zaina Nyiramatama, Kigali, Au gust 7, 2009; Human Rights Watch interview with Profemme Executive Secretary Suzanne Ruboneka, Kigali, August 20, 2009; Human Rights Watch interview with ARCT Executive Secretary Jane Gatete Abatoni, Kigali, August 7, 2009; Human Rights Watch interview with Ibuka Executive Secretary Benot Kabo yi, Kigali, August 11, 2009. 546 Human Rights Watch interview with Avega Head of Advocacy, Ju stice, and Information Sabine Uw ase, Kigali, August 8, 2009. 547 Human Rights Watch interview with womens group representative, Kigali, August 2009. 548 Human Rights Watch interview with SNJG Executive Secr etary Domitilla Mukantaganzwa, Kigali, September 9, 2008. 549 Human Rights Watch interview with rape victim, Kamonyi District, August 12, 2009.

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Justice Compromised 114 They gave various reasons for their reluctance. First, most feared that their statements would not remain confidential, given that the judges were all members of their local communities and were sometimes even related to the accused.550 Four of the womens groups and Ibuka also cited the lack of confidentiality as on e of the main reasons they had opposed the transfer of rape cases to gacaca,551 while another organization said that many of the women they had assisted in gacaca felt that the confidentiality of their statements had not been protected.552 Second, some said that even if the precise nature of their case was protected, they felt that everyone in the community wo uld still know that the case involved rape because, on the day of gacaca sessions, whether behind closed doors or in public hearings, community members would see a woman and a man enter a room (with others) and therefore guess the nature of the case.553 Two women said they did not believe their ca ses would be judged fairly and impartially, given the judges ties within the community. One woman said that she did not have confidence in the process, because the brothe r of the man who had raped her had served as a judge in separate rape cases and that she believed he had also committed crimes during the genocide.554 Another rape victim also said that the people judging rape cases in her area were often closely related to persons a ccused of involvement in the genocide.555 Several rape victims and a representative of a womens group spoke about corruption in rape cases.556 One woman told Human Rights Watch that she would have preferred her case to go before the conventional courts where it would be more difficult for the family of an accused person to corrupt the judges.557 The representative of a womens organization said that in gacaca, accused persons sometimes asked women to accept money in exchange for dropping their cases.558 Two trauma counselors who accompanied women through the gacaca process reported that some women accepted bribes from community members to 550 Human Rights Watch interview with rape victim, Kigali, Augu st 11, 2009; Human Rights Watch interview with rape victim, Kamonyi District, August 12, 2009; Human Rights Watch in terview with rape victims, Butare, August 14, 2009. 551 Human Rights Watch interview with Avega Head of Advocacy, Ju stice, and Information Sabine Uw ase, Kigali, August 8, 2009; Human Rights Watch interview with Profemme Executive Secret ary Suzanne Ruboneka, Kigali, August 20, 2009; Human Rights Watch interview with ARCT Executive Secretary Jane Gatete Abaton i, Kigali, August 7, 2009; Huma n Rights Watch interview with Ibuka Executive Secretary Benot Kaboyi, Kigali, August 11, 2009. 552 Human Rights Watch interview with ARCT Executive Secretary Jane Gatete Abatoni, Kigali, August 7, 2009. 553 Human Rights Watch interview with rape victim, Kigali, Augu st 11, 2009; Human Rights Watch interview with rape victim, Kamonyi District, August 12, 2009; Human Rights Watch in terview with rape victims, Butare, August 14, 2009. 554 Human Rights Watch interview with rape victim, Kamonyi District, August 12, 2009. 555 Human Rights Watch interview with rape victims, Kigali, Augu st 11, 2009; Human Rights Watch interview with rape victim, Butare, August 14, 2009. 556 Human Rights Watch interview with rape victims, Butare, Augu st 14, 2009; Human Rights Watch interview with rape victim, Kamonyi District, August 12, 2009; Human Rights Watch in terview with rape victim, Gitarama, August 10, 2009. 557 Human Rights Watch interview with rape victim, Kamonyi District, August 12, 2009. 558 Human Rights Watch interview with Avega Head of Advocacy, Ju stice, and Information Sabine Uw ase, Kigali, August 8, 2009.

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115 Hu man Rights Watch | May 2011 claim falsely they had been raped. The above case of Dr. Justin Nsengimanain which the woman initially accusing him of rape later changed her story and revealed that her uncle had offered her a cow to accuse her former employerserves as an example.559 According to a gacaca judge who handled rape cases, individual s were sometimes falsely accused of rape when it became difficult to convict them of other offenses.560 Some Rwandans believed rape allegations were easier to prove because they depended largely, if not entirely, on the testimony of a single witnessthe victim. Two women felt that having their cases tried in gacaca minimized the seriousness of rape.561 Several women also said they believed the sentences to be too lenient, particularly when the accused confessed.562 Womens groups and Ibuka agreed.563 A third of the rape victims interviewed by Human Rights Watch expressed frustration with the fact that they had received no monetary compensation after the accused was convicted.564 Under statutory law, a rape victim whose case is heard in the conv entional courts is entitled to civil damages.565 Rape Cases that Were Not Brought before Gacaca A few women asked the SNJG to discontinue thei r case once it had been transferred to the gacaca courts. In one such case, the SNJG offered to appoint a gacaca jurisdiction from a different area to hear the case.566 In other cases, women decide d not to pursue their case because they had not told their spouses or ot her relatives about the rape and did not want them to know or create problems for their family in their community.567 Some women chose not to proceed with their cases because they fe ared renewed trauma if they were to speak about what happened to them again.568 559 Human Rights Watch, trial observations, Case of Dr. Justin Nsengimana, Jurisdiction of Gishamvu Sector, Huye District, Southern Province, February 20, 2010. 560 Human Rights Watch interview with gacaca judge, Nyarugenge District, April 14, 2009. 561 Human Rights Watch interview with rape victim, Gitarama, August 10, 2009; Human Rights Watch interview with rape victim, Kamonyi District, August 12, 2009. 562 Human Rights Watch interview with rape victim, Kigali, August 11, 2009; Human Rights Watch interviews with rape victim, Kamonyi District, August 12, 2009; Human Rights Watch in terview with rape victim, Gitarama, August 10, 2009. 563 Human Rights Watch interview with Avega Head of Advocacy, Ju stice, and Information Sabine Uw ase, Kigali, August 8, 2009; Human Rights Watch interview with Ibuka Executive Secretary Benot Kaboyi, Kigali, August 11, 2009. 564 Human Rights Watch interview with rape victim, Kicukiro Dist rict, August 11, 2009; Human Rights Watch interview with rape victims, Kamonyi District, August 12, 2009. See also Human Ri ghts Watch interview with Ibuka Executive Secretary Benot Kaboyi, Kigali, August 11, 2009. 565 1996 Genocide Law, art. 30. 566 Human Rights Watch interview with SNJG Executive Secr etary Domitilla Mukantaganzwa, Kigali, August 17, 2009. 567 Ibid. 568 Ibid; Human Rights Watch interview with rape victim, Butare, August 14, 2009.

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Justice Compromised 116 Half of the rape victims who spoke to Human Rights Watch, including those who had suffered multiple rapes and who had seen other women pursue their cases in gacaca, said they had been unable to bring their rape ca ses at all because either the accused was not known to them or the accused had died.569 As one trauma counselor said, many women who were raped by military or Interahamwe [militia who participated in the genocide] could not bring their cases because they didnt know the perpetrators identity.570 One victim who was unable to bring her case said, I knew the face of the person but not his name.571 Another rape victim reported that she had been unable to bring a claim against any of the nine men who raped her as they had all died.572 Yet another woman explained: It would have been a relief to have him confess but there is nothing I can do. You are left with the trauma of him not coming.573 These stories suggest that gacaca trials, and prosecutions more generally, were not sufficient to provide closure for some rape victims. Rape Victims Perspectives on Gacaca Women who appeared in gacaca in connection with rape cases had mixed experiences, with some feeling quite negative about the experien ce and others finding it less difficult than they expected. Under the gacaca rules, women have the right to bring one trauma counselor and a relative or friend to accompany them to the hearing, even behind closed doors.574 A number of organizations provided rape victims with trauma counselors, including Avega, ARCT, and Ibuka. The Victim and Witness Support Unit also took women who expressed fear of testifying in gacaca to the communal rooms where their trials would take place to familiarize them with the surroundings in advance of the trial.575 While many women received trauma counseling ahead of their trial and agai n at the hearing if needed, others were less fortunate due to the limited number of trauma counselors around the country and appeared on their own or with a relative or friend.576 Gacaca courts often disposed of rape cases in a single hearing lasting anywhere from several hours to a full day, but some needed three to four sessions to decide a case. One gacaca judge told Human Rights Watch that the adjudication of rape cases had been problematic because the victims and the a ccused typically appeared, but that summoned 569 The same result would have occurred in the conventional courts. 570 Human Rights Watch interview with trau ma counselor, Kigali, August 10, 2009. 571 Human Rights Watch interview with rape vi ctim, Ngororero District, August 10, 2009. 572 Human Rights Watch interview with rape victim, Kamonyi District, August 12, 2009. 573 Human Rights Watch interview with rape vi ctim, Ngororero District, August 10, 2009. 574 Human Rights Watch interview with trau ma counselor, Kigali, August 10, 2009. 575 Human Rights Watch interview with VWSU Coordinator Thoneste Karenzi, Kigali, November 16, 2010. 576 Human Rights Watch interview with Ibuka Executive Secretary Benot Kaboyi, Kigali, August 11, 2009.

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117 Hu man Rights Watch | May 2011 witnesses often failed to show up. In some ca ses this led the court to adjourn the case two or three times, after which the court simply decided the case with or without the witnesses.577 In the majority of cases described to Human Rights Watch, the only persons who testified in the gacaca hearing were the victim and the accused. Two procedural tools were introduced to make the experience easier for rape victims. First, like in other cases, victims had the right to re quest that a judge be disqualified from hearing their case. Unlike in other category 1 and 2 case s, however, the ability to disqualify a judge appeared almost automatic and did not requir e the victim to demonstrate a judges actual bias or conflict of interest. One woman disq ualified a judge because she thought he would not respect her right to confidentiality.578 Second, rather than appear in person, women could write a letter containing their allegations, which was given to the district coordinator who then presented it to the gacaca court.579 This procedure would not have been possible in the conventional courts. While the procedur e compromised the right of an accused to confront his accuser (the rape victim) directly and to challenge her credibility, it provided some degree of relief to women who were too frightened to appear in gacaca or to confront the men who had allegedly raped them. Human Rights Watch documented two cases where this procedure was used. For most women, the experience of appearing in gacaca was emotionally difficult, and more difficult than they believed a conventional court trial would have been, but their cases proceeded relatively smoothly. One woman said that she could not reveal everything that happened to her in the hearing because she knew all of the judges from her community and did not feel comfortable telling them about the incident.580 Another woman believed that the gacaca judges asked bad or insensit ive questions during the hearing.581 Most of the interviewees, however, believed the judges acted appropriately and in a manner that was sensitive to the situation, with one woman desc ribing how judges seemed to be listening to her and another recalling how judges gave her a moment to calm down when she broke down in tears.582 A few women said that they experienced proble ms as a result of their rape cases. One woman said that people had thrown stones at her house four times following the trial and 577 Human Rights Watch interview with gacaca judge, Nyarugenge District, April 14, 2009. 578 Human Rights Watch interview with ra pe victim, Gitarama, August 10, 2009. 579 Human Rights Watch interview with rape victim, Kigali, August 11, 2009. 580 Human Rights Watch interview with rape victim, Gitarama, Au gust 10, 2009. The woman said she would have felt able to provide more information on what happen ed to her in the conventional courts. 581 Human Rights Watch interview with ra pe victim, Gitarama, August 10, 2009. 582 Human Rights Watch interviews with rape victims, Kamonyi District, August 12, 2009.

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Justice Compromised 118 had left handwritten notes with threatening words.583 She said she felt she had to go home early every evening and felt deprived of her ability to move freely in her community. Two women reported that community members had accused them of making false accusations simply because they had decide d to pursue their rape cases.584 Another rape victim, who happened to be a judge of category 2 cases (unr elated to her own rape case), reported that community members threats and intimidation (including stones thrown at her house) had been so intense that she was forced to move to a different location.585 Another rape victim also had to relocate due to threatening notes she received at home.586 Avega documented several cases where rape victims had receiv ed threats from the individuals they had accused.587 One troubling case involved a woman whose alle ged rapist tried to intimidate, or perhaps even harm, her on the eve of his trial in November 2008. When she saw him and another man arrive in front of her house on a motorcyc le, she immediately called the police and hid, leaving another woman in the house to deal wi th the men and to try to buy her time. The police arrived on the scene quickly and managed to arrest the alleged rapist.588 The man told the police that he had raped the woman and was coming to request forgiveness and offer her 200,000 Rwandan francs (approximately US$3 30). However, when they frisked the man, they found that he had little money on himno where near the amount had he claimed to be offering her.589 The trial went ahead the following day, and the manwho did not confess was convicted and sentenced to life with special provisions.590 583 Human Rights Watch interviews with rape victim, Kamonyi District, August 12, 2009. 584 Human Rights Watch interviews with two rape victims, Kamonyi District, August 12, 2009. 585 Human Rights Watch interview with rape vi ctim, Ngororero District, August 10, 2009. 586 Human Rights Watch interview with rape victim, Kamonyi District, August 12, 2009. 587 Human Right Watch interview with Avega Head of Advocacy, Just ice, and Information Sabine Uw ase, Kigali, August 8, 2009. 588 Human Rights Watch interview with rape victim, Kigali, August 11, 2009. 589 Human Rights Watch interview with person knowle dgeable about the case, Kigali, August 12, 2009. 590 Human Rights Watch interview with rape victim, Kigali, August 11, 2009.

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119 Hu man Rights Watch | May 2011 X. Selective Justice and the Failure to Address Rwandan Patriotic Front Crimes The biggest problem with gacaca is th e crimes we cant discuss. Were told that certain crimes, those killings by the RPF, cannot be discussed in gacaca even though the families need to talk Were told to be quiet on these matters. Its a big problem. Its not justice. Relative of a victim of RPF crimes, May 30, 2004 One of the gacaca laws most serious shortcomings is that it does not cover war crimes and crimes against humanity committed by the RPF as it sought to end the genocide between April and July 1994 and consolidated its control on the country in the months that followed. According to at least four UN bodies and a number of NGOs who collected testimonies, RPF soldiers committed war crimes and crimes against humanity during this period. A study by the UN High Commissioner for Refugees estimated that RPF soldiers killed between 25,000 and 45,000 persons between April and August 1994.591 These crimes are not equivalent to genocide, but the rights of the victims are eq uivalent: under Rwandan and international law, all citizens have the right to justice regardless of their ethnicity and political affiliation or that of the alleged perpetrator, and whether the crime is genocide, a war crime or a crime against humanity.592 Under the 2001 Gacaca Law, gacaca courts had jurisdiction over war crimes.593 However, political considerations soon eliminated any hopes that victims of RPF crimes and their relatives might be able to seek justice through gacaca. In his June 2002 speech launching the gacaca process, President Kagame said it woul d be a grave error to confuse genocide with acts of vengeance taken by individuals.594 The 2004 Gacaca Law removed war crimes from the jurisdiction of the courts, limiting their remit to genocide and crimes against humanity, and a government-sponsored national public campaign insisted that RPF crimes were not to be talked about in gacaca.595 591 UN High Commissioner for Refugees, Note, la Situation au Rw anda, confidential, September 23, 1994; notes from briefing given by Robert Gersony, UNHCR, Geneva. 592 For a more general discussion of RPF crimes, see Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda, pp. 89-95; Alison Des Forges, Leave None to Tell the Story, pp. 701-735. 593 2001 Gacaca law, art. 1. 594 Speech of President Paul Kagame at the Launch of Gacaca Jurisdictions, June 18, 2002, available in PRI, PRI Research on Gacaca Report: Rapport III, April June 2002, http://www.penalreform.org/publications/gacaca-research-report-no3jurisdictions-pilot-phase-0 (accessed September 29, 2010), annex, pp. 34-35. 595 Human Rights Watch interviews, Kigali, May 28 and 31, 200 5. Senior government authorities regularly underlined the restriction on gacacas jurisdiction during public radio broadcasts. For ex ample, Servilien Sebasoni, spokesperson for the RPF,

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Justice Compromised 120 Government officials have frequently said that anyone who suffered at the hands of a soldier should report him or her to the police for pr osecution. But given that discussing RPF war crimes has been and continues to be equated with holding genocide ideology or arguing that a double genocide occurred, few Rwanda ns were likely to file such complaints.596 The failure to deal with these crimes in gacaca and to provide people who lost relatives at the hands of RPF soldiers with some form of redress has caused bitterness and frustration for some Rwandans. The exclusion of these crimes from the jurisdiction of gacaca courts might not have been so serious had there been other avenues for victims of these crimes to seek justice. But very few RPF soldiers, and even fewer officers, have been charged or tried in connection with these crimes, and it is almost taboo to talk about these events publicly in Rwanda. The result is that most victims and re latives of victims of RPF crimes have all but given up on seeking justice. In 2009, the UN Human Rights Committee called on Rwanda to investigate and prosecute RPF soldiers respon sible for the large number of persons, including women and children, reported to have been killed from 1994 onwards.597 No further actions have been taken since that time. The Rwandan government maintains that RPF cr imes have been prosecuted. However, to date, the military justice system has prosecuted on ly 36 former or current officers for killing or otherwise violating the rights of civilians during 1994.598 Most of those convicted were ordinary soldiers or of lower ranks and receiv ed punishments of less than four years that were not proportionate to the gravity of the crimes. The ICTR, for its part, has failed to prosecute any RPF crimes, even though these fall squarely within its mandate.599 Many Rwandans are reluctant to speak openly on the subject of accountability for RPF crimes, but those willing to discuss the subject expre ssed frustration and dissatisfaction with the gacaca process. Some believed that the govern ment has tried to impose an inaccurate single historical narrativethat the RPF sto pped the genocide and saved the people of Rwanda from the atrocities without committing any crimes themselveswhile others thought blamed local authorities at the community level for failing to make the population understand th at RPF crimes are not within the jurisdiction of the gacaca courts (Morning edition, Voice of America, May 31, 2005). 596 Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda, pp. 89-91; Amnesty International, Safer to Stay Silent: The Chilling Effect of Rwandas Laws on G enocide Ideology and Sectari anism, pp. 7, 11, 21, 27. 597 UN Human Rights Committee, Consideration of Reports Subm itted by State Parties Under Article 40 of the Covenant, Concluding Observations of the Human Rights Commi ttee, CCPR/C/RWA/CO/3, May 7, 2009, http://daccess-ddsny.un.org/doc/UNDOC/GEN/G09/441/54/PDF/G0944154 .pdf (accessed April 27, 2010), para. 13. 598 Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda, annex 2. 599 Rwanda Tribunal Should Pursue Justice for RPF Crimes, Human Rights Watch news release, December 12, 2008, http://www.hrw.org/en/news/2 008/12/12/rwanda-tribunal-should-pursue-justice-rpf-crimes; Tribunal Risks Supporting Victors Justice, Human Ri ghts Watch news release, June 1, 2009, http://www.hrw.org/en/news/2009/06/01/rwandatribunal-risks-supporting-victor-s-justice.

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121 Hu man Rights Watch | May 2011 the RPF did not want to admit to the crimes because it might weaken its moral authority. The inability of victims of RPF crimes to raise their claims in gacaca courts, and the very limited options for doing so in any other forum, have hindered reconciliation efforts.

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Justice Compromised 122 XI. Perspectives on Gacaca Has gacaca achieved its stated objectives? Has it revealed the truth about what happened during the genocide, accelerated trials, erad icated the culture of impunity, reconciled Rwandans, and proved that Rwanda has th e capacity to settle its own problems?600 Over the course of five years, Human Rights Watch interviewed a wide range of people involved in gacaca, including victims, genocide survivors, perpetrators, witnesses, other community members, judges, local and national government officials, and nongovernmental organizations. These Rwandans told Human Rights Watch how they viewed gacaca and its role in the aftermath of the genocide. While their views related specifically to gacaca trials, some of their concerns might have been eq ually relevant to the conventional courts. Genocide Survivors Perspectives A number of genocide survivors told Human Rights Watch that the gacaca process played a positive role in their lives. They said that most importantly they and the broader community learned about what happened to their loved ones and that the process helped them to give their relatives a proper burial. Other genoci de survivors challenged this position, saying that not all of the truth had been revealed during gacaca due to partial confessions, false accusations by all parties involved in the proc ess, and judgments that did not always reflect the evidence presented at trial. Most agreed that they learned some valuable information about the events of 1994. Former Ibuka exec utive secretary Benot Kaboyi summarized the success of gacaca as having more or less informed us [the population] about what happened and as informing us of where the dead are.601 Genocide survivors had more mixed views on whether gacaca was the appropriate forum for genocide-related cases and on how gacaca trials played out in their local communities. Nearly all those interviewed agreed that gacaca reduced the prison population and processed cases faster than the conventional courts. Many genocide survivors had concerns about co rruption and judges partiality. A number of people referred to the community service program and the early release of certain categories 600 Objectives set out by Paul Kagame, Speech of the Vice-Preside nt and Minister of Defence on the Occasion of the Opening of the Seminar on Gacaca Tribunals, Kigali, June 18, 2002, reproduced in PRI,PRI Research on Gacaca Report: Rapport III, April June 2002, http://www.penalreform.org/publications/gacac a-research-report-no3-jurisdictions-pilot-phase-0 (accessed September 2, 2010), annex. 601 Human Rights Watch interview with Ibuka Executive Secretary Benot Kaboyi, Kigali, August 11, 2009.

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123 Hu man Rights Watch | May 2011 of prisoners as examples of soft sentencing pr actices. Only a few people said they thought the sentences matched the crimes committed against them or their families. A number of genocide survivors also complained that gacaca courts provided no financial compensation to victims who had lost relative s or who were themselves injure d or raped: only those whose property was looted or destro yed received reparations. Opinions also differed on whether the gacaca process had eradicated the culture of impunity and would deter future violence. A significant number of genocide survivors, particularly widows, expressed a fear of renewed violence Some believed the individuals whom they accused might take revenge on them once rele ased from prison. Others who had received threats or been intimidated worried that indi viduals who took part in the genocide might come back to finish what they had started. Human Rights Watch also encountered a wide range of views on gacacas role in promoting reconciliation. A number of genocide survivors said they were now able to greet their neighbors who had committed wrongs against them or could finally attend community events at which those neighbors were present. One judge declared that gacaca has helped the situation because people are slowly approaching each other when they didnt before.602 However, many of the same genocide surviv ors indicated that these encounters were superficial and that tensions remained hi gh between victims, perpetrators, and their families. As one genocide survivor said, We sa y hello to each other but we dont visit each other even though we were friends and sh ared beer together before the genocide.603 One woman said that the process had reduced her hatred towards the man who had raped her.604 But most genocide survivors said they remained distrustful of those who had wronged them. A number of survivors also raised the lack of remorse on the part of the perpetrators, saying that only those who destroyed or stol e personal property expressed genuine remorse and asked for forgiveness. As one genocide survivor put it: The young man who raped me whispered to me at the trial that if I forgave him, he would honor me in the future. He has never come to see me since he was released. I never see him even though he lives in the same neighborhood.605 602 Human Rights Watch interview with gacaca judge (and genocide survivor), Ngororero District, August 10, 2009 603 Human Rights Watch interview with genocide survivor, Kamonyi District, August 12, 2009. 604 Human Rights Watch interview with rape victim, Butare, August 14, 2009. 605 Human Rights Watch interview with rape victim, Kamonyi District, August 12, 2009.

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Justice Compromised 124 Other genocide survivors gave similar accoun ts. Some felt that the confessions were incomplete or lacking in detail, often beca use the confessions were aimed primarily at securing release from prison. Some genocide survivors explained that they felt forced to publicly forgive those who had wronged them even though in their hearts they had not forgiven them. As one woman said, This is government enforced reconciliation. The government forced people to ask for and give forgiveness. No one does it willinglyThe government pardoned the killers, not us.606 Others spoke of the governments insistence on reconciliation but reiterated how dire genocide survivors economic circumstances remained. A number of genocide survivors expressed bitterness over the governments failure to give them financial assist ance and to ensure their security. According to many genocide survivors, reconciliation remained precarious. Many survivors spoke of the need to live peacefully and to co-exist with their Hutu neighbors, but most admitted that they still saw people thro ugh the lens of Hutu and Tutsi. The Perspectives of Those Accused of Genocide and their Families Many individuals accused of participating in the genocide echoed the views of genocide survivors by saying that gacacas main success was to help people understand what had happened during the genocide and to allow peop le to find and bury their loved ones. In general, however, they remained mo re critical about the role that gacaca has played in rebuilding the country. Their familie s often expressed similar views. Most of the accused (some of whom we re later convicted) believed that gacaca trials helped reduce the prison population and ensured that some of the innocent were released. Most understood that it would not have been possibl e to resolve the large caseload of genociderelated cases as quickly through the conventional courts. However, many believed that political considerations heavily influenced the gacaca process and that the resulting judgments were not always fair or based on facts. Most individuals referred to irregularities in their cases and felt that their rights had been sacrificed for the expediency of the process. Similar to many genocide survivors, individu als raised concerns over corruption, false accusations, and certain judges partiality. In addition, some believed their cases had little to do with the genocide and more to do with private disputes with neighbors, friends, or even relatives. 606 Human Rights Watch interview with another ra pe victim, Kamonyi District, August 12, 2009.

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125 Hu man Rights Watch | May 2011 Individuals who confessed to their crimes tended to be more optimistic about the process. One man said that he had admitted to all of his crimes and that the community and his family welcomed his confession.607 While he acknowledged that he had only confessed because he feared accusations by genocide surviv ors, he expressed relief at having done so. Most persons who confessed agreed that it helped to reveal what had happened and that it accelerated their release from prison to rejoin their families. A number of those accused lamented the fact that Hutu could not seek justice for crimes committed by the RPF. Many hesitated to openly discuss this question, in part because they were afraid of what might happen to them if they spoke to outside observers. Those who were willing to do so said they thought it was unfair that only certain crimes could be raised in gacaca and that the loss of their relatives at the hands of the RPF remained unrecognized. Others claimed the gacaca process had insincere aims and was designed to impose a sense of collective guilt on all Hutu. One individual described gacaca as a means of targeting Hutu.608 For these individuals, the gacaca process was not likely to break the cycle of impunity and had instead only caused more problems. Commenting on gacacas contribution to reconciliation, the wife of one convicted man said: Gacaca has left Hutu and Tutsi even more divided than before.609 A number of interviewees agreed and spoke of increased tensions be tween the two ethnic groups. A fewfar fewer than the number of genocide survivorssaid that gacaca had helped relieve ethnic tensions and gave examples of individuals who were no w able to greet or speak with each other. Reconciliation Achieved? The interviews conducted by Human Rights Watc h suggest that many genocide survivors and persons accused of involvement in the genocide view gacaca as having had some success, notably in bringing to light new information abou t the genocide and in accelerating efforts to achieve justice. Interviewees disagreed on whether gacaca was the appropriate forum to resolve these cases, whether gacaca courts had operated fairly, and whether the sentences handed down were commensurate with the crimes. The largest variation of opinions came with respect to the issue of reconciliation. Human Rights Watch did not carry out an in-depth study on the reconciliation aspect of gacaca. The above perspectives were gathered from conversations with Rwandans in the 607 Human Rights Watch interview with person who confessed, Gitarama, August 28, 2009. 608 Human Rights Watch interview with accused person, Gicumbi District, November 25, 2005. 609 Human Rights Watch interview with wife of accused, Kigali, August 6, 2009.

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Justice Compromised 126 course of gathering information on gacaca trials and other human rights research in Rwanda. Nonetheless, three main conclusions can be drawn from these interviews. First, justice alone may not bring reconciliation and may only be one step in a much lo nger and more complex process. Gacaca may have placed Rwandans on the path to reconciliation, at least superficially, by allowing them to live together in relative peace and to greet each other or exchange a few words, butunsurprisingly just 17 years after the genocidethere is still distrust within communities between the two main ethnic groups. Second, gacaca has reopened certain wounds and reinforced ethnic divisions. The government has effectively banned public mentio n of the words Hutu or Tutsi, in an attempt to allay ethnic tensions and reinforce the notion of one Rwanda, but gacaca has reinforced alternative labels along ethnic lines: that of victim and perpetrator. Only Tutsi can be victims in gacaca and generally only Hutu can be perpetrators.610 Gacaca courts failure to give redress to all victims, Tutsi an d Hutu alike, has caused bitterness for some Rwandans and has led to increased tensions in certain communities. Third, reconciliation in Rwanda is more about cohabitation, or peaceful co-existence as a matter of daily necessity, than genuine forgiveness that come s from the hearts of genocide survivors.611 610 Human Rights Watch has documented a few isolated cases where gacaca courts prosecuted Tutsi in connection with crimes committed during the genocide, but such cases were rare. None related to RPF killings. 610 Remarks of researcher Bert Ingelaere, Great Lakes Conference: People and Po wer in Transition, Antwerp, Belgium, September 17, 2010; Bert Ingelaere, The Gacaca Courts in Rwanda, in Luc Huyse and Mark Salter eds., Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences (Stockholm: IDEA, 2008). 611 See Remarks of Bert Ingelaere, Great Lakes Conference: Peop le and Power in Transition, Antwerp, Belgium, September 17, 2010; Remarks of Anne Aghion following showing of My Neighb or, My Killer, during Movies that Matter Film Festival, The Hague, March 28, 2010.

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127 Hu man Rights Watch | May 2011 XII. International Support for Gacaca Gacaca would not have been possible without the significant support of international donors. Belgium, the Netherlands, and the European Un ion (EU) have been the largest funders over the past 10 years. Austria and Switzerland also contributed to the process. Human Rights Watch could not ascertain the motivations behind foreign donors decision to finance gacaca, in part because many of the representatives of donors involved in the initial policy decisions no longer work on Rwanda and could not be reached for comment. Investing in the gacaca process was a risky decision, as one acad emic wrote in a 2000 report prepared for the Belgian government as it contemplated funding gacaca: How to decide on a policy towards the gacaca proposal?....[I]t is clear that the proposal is simultaneously extremely promising and very dangerous; long thought-out and full of uncertainty; locally owned and weakly socially implanted; containing the seeds of reconciliation and potentially leading to increased conflict; preparing a decrease in the (current) prison population while possibly leading to increases in new detainees. There is no way to be sure of anything: it is a giant bet for the Rwandan authorities and population, as it would be for any donor supporting it (with th[e] difference that for donors it is not a matter of life and death, whereas for the Rwandans it is).612 Despite the inherent risks, a number of Europe an countries made the choice to support the gacaca process. Belgium was the earliest and largest contributor to gacaca, giving approximately .1 million (approximately US$11.3 million) to the SNJG be tween 2000 and 2008. Most of this funding went toward training gacaca judges and providing logistical support, includin g tables, chairs, notebooks, and sashes for the judges.613 Belgium also supported initiatives to improve the standard of living of gacaca judges, conducting a study to determine judges needs and later providing radios and a one-time payment of 4,300 Rwandan francs (approximately US$7) each to all judges. Belgian funding facilita ted the purchase of one bicycle for each gacaca 612 Peter Uvin, The Introduction of a Modernized Gacaca for Judging Suspects of Participation in the Genocide and the Massacres of 1994 in Rwanda: A Discussi on Paper, 2000, http://fletcher.tufts.ed u/faculty/uvin/pdfs/reports/Boutmans.pdf (accessed September 9, 2010), p. 12. 613 Human Rights Watch telephone interview with Dirk Brems, form er First Secretary in charge of Cooperation and Development at the Belgian embassy in Kigali, December 9, 2010; Human Ri ghts Watch telephone interview with former Belgian Technical Cooperation project co-manager, Vro nique Geoffroy, December 9, 2010.

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Justice Compromised 128 jurisdiction in 2008.614 In addition to funding the SNJG, Belgium provided .5 million (approximately US$2.1 million) each year, for a total of million (approximately US$16.8 million), to NGOs monitoring the gacaca process and the justice system more generallythe two main organizations being ASF and PRI.615 The Netherlands has been another important contributor to gacaca, providing more than million (US$7 million) to gacaca between 2002 and 2009. 616 A significant portion of this funding was channeled through a basket fund, joined by Switzerland and Austria, which provided technical assistance to the SNJG. Th e main assistance offered through the basketfund, or Bureau dAppui Technique (Office of Technical Support), consisted of training gacaca judges. Switzerland and Austria, as discus sed below, dropped out of the project after the pilot phase ended in 2005, but the Netherla nds continued its support for training judges in later years. The Dutch government contributed significantly to an initiative to train judges in 2008 when rape cases were transferred to gacaca.617 The EU contributed approximately million (US$4.2 million) to gacaca between 2002 and 2009.618 The funding went directly to the SNJG an d was used mainly for training judges and publication of the Inkiko-Gacaca newslettera government initiative to report on gacaca activities. Like other donors, the EU funded NGOs involved in the gacaca process, from those monitoring trials to those providing psychological counseling to rape victims whose cases would be decided by gacaca. In 2010, the EU stopped funding specific projects and instead moved to sector budget supportproviding financ ial backing to the justice sector as a whole and allowing the Rwandan government to determine how the money was to be spent.619 614 Human Rights Watch telephone interview with Dirk Brems, form er First Secretary in charge of Cooperation and Development at the Belgian embassy in Kigali, December 9, 2010; Human Ri ghts Watch telephone interview with former Belgian Technical Cooperation project co-manager, Vronique Geoffroy, December 9, 2010. See also BTC, Rapport dExcution: December 2004May 2005, Appui au Renforcement de ltat de Droit et de la Justice au Rwanda : Co ur SuprmeSNJG, May 2005 (copy on file with Human Rights Watch). 615 Human Rights Watch telephone interview with Dirk Brems, form er First Secretary in charge of Cooperation and Development at the Belgian embassy in Kigali, December 9, 2010. 616 Human Rights Watch email correspondence with Frieda Nicola i, First Secretary at the Dutch Embassy, October 13, 2010. 617 The 2008 training was carried out by the Institute for Legal Practice and Development (ILPD), a center for legal training and continuing education programs. Human Righ ts Watch email correspondence with Frieda Nicolai, First Secretary at the Dutch Embassy, October 13, 2010. 618 Human Rights Watch email correspondence with Renaud Houz el, Head of Justice Sector at the European Commission, October 8, 2010. 619 Financing Agreement between the European Commission and the Re public of Rwanda: Sector Budg et Support for the Justice, Reconciliation, Law and Order Sector (SBS JRLO), April 19, 2010. By the end of 2010, the European Commission had disbursed a total of six million Euros under the agreement. Human Rights Watch interview with Renaud Houzel, Head of the Justice Sector at the European Commission, Kigali, November 10, 2010. Belgium a nd the Netherlands made a similar move in 2009. By using general budget support, the European donors no longer ha ve a say in whether their funds are used to support gacaca or other justice-related projects The Rwandan government, in turn, mu st report adequately on use of the funds and meet other predetermined benchmarks. See Memorandum of Understanding between the Government of Rwanda and the Development Partners Regarding Partnership Principles for Support to the Justice, Reconciliation, Law and Order Sector, July 8, 2009.

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129 Hu man Rights Watch | May 2011 Austria provided .2 million (US$1.68 million) to the gacaca process between 2002 and 2010, with funds initially directed to the basket-fund supporting the Bureau dAppui Technique and later to SNJG directly for the establ ishment of an audio-visual documentation center.620 Austria devoted an additional 000 (approximately US$796,000) over the same period to civil society groups monitoring the gacaca process.621 Switzerland contributed one million Swiss Fr ancs (approximately US$1.11 million) to gacaca during the 2002-2004 pilot phase. It withdrew its support before trials began nationwide in 2005, however, after concluding that the pr ocess appeared to be aggravating social tensions.622 Switzerland tried to redirect its fundin g towards reform of certain problems in gacaca, but the Rwandan government was not receptive to the proposal and no further funding was provided.623 Switzerland continued to fund at least one NGO monitoring gacaca trials until 2008.624 Some diplomats have effectively raised indi vidual cases where miscarriages of justice occurred and, at times, urged the SNJG to be more transparent in providing information on the number of cases pending and judged. Diplomats often relied on NGOs monitoring the gacaca process to alert them to problematic case s but also occasionally sent local embassy staff to monitor particular trials. Donors rarely used their influence, however, to address the more fundamental and systemic problems described in this report. Given the exte nt of their financial and political support for the judicial system, donors should have used th eir position to insist on the incorporation of certain minimum standards for gacaca trials and to press the Rwandan government for corrective action to end corruption and abuse of the gacaca process for personal or political ends. 620 Human Rights Watch email correspondence with Walter Ehmeir Head of the Austrian Development Agency in Kampala, November 17, 2010. 621 Ibid. 622 Human Rights Watch interview with Didier Douziech, He ad of the Great Lakes Program at the Swiss Development Cooperation, December 2, 2010. 623 Ibid. 624 Human Rights Watch email correspondence with Fatima Boulne mour, former PRI head of mission in Rwanda, December 8, 2010.

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Justice Compromised 130 XIII. Conclusion Rwanda has faced enormous challenges in th e aftermath of the genocide. There was never going to be an easy solution for dealing with the hundreds of thousands of genocide-related cases within a reasonable timeframe. The Rw andan governments decision to consider gacaca was not an unreasonable way to offer some form of justice for the genocide. It had the advantages of expeditiously bringing susp ects to justice and providing redress to the victims, while also reducing the prison population. However, as documented in this report, the compromises made in adapting the customary community-based practice to try grave criminal offenses led to significant due process violations being built into the system and a degree of disappointment on the part of many Rwandans. A number of compromises may have been inevitable in the context of gacaca, but certain fundamental rightssuch as the right not to be prosecuted twice for the same crime, and the right to be informed of the charges with enou gh specificity and adequate time to prepare and present a defense (including through de fense witnesses)should have been better protected. Absent trained legal professionals to assist the parties or to weigh the evidence and decide cases, the protection of these righ ts was even more important to ensure fair trials. The government did not provide gacaca judges with adequate training and legal guidance, despite the complexity of the cr iminal concepts that they would need to address. Nor did it pay them for their work. With judges elected by their local communities, it was eminently foreseeable that it would be difficult, if no t impossible, for many to prevent their own perspective of the genocide, their relationsh ip with community members, and their own economic interests from interfering with their decision-making. A stronger and more robust legal framework was needed to ensure judges impartiality and to insist upon reasoned and fact-based judgments. Similarly, more safeguards were necessary to prevent private individuals and government officials from misusing gacaca proceedings to serve their own narrow interests. Gacacas informal nature and dependence on local actors, many of whom had their own agendas, meant that accused persons, genocide survivors, influential community members, judges, and state agents all exerted undue influence on the gacaca process at times.

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131 Hu man Rights Watch | May 2011 Gacaca unfolded differently across the country and evolved over the years, in part because of changes to the law and in part due to loca l variation on the ground. The government made certain improvements to the process, such as abolishing the death penalty and allowing convicts to suspend portions of their prison sentence and serve community service first. At times, the SNJG responded positively to repo rts of irregularitiesfor example, providing legal guidance to gacaca judges or directing remedial acti on in particular cases. Yet these instances were sporadic and inconsistent. The SN JGs inability or unwillingness to effectively monitor and remedy problems in the gacaca system as a whole stemmed from inadequate resources, a lack of political will, and a fail ure to proactively monitor cases and listen to local communities and outside observers about worrying trends that developed countrywide. By 2008, and perhaps even earlier according to some, the SNJG had become unresponsive to many NGOs and donors expression of concern about the extent and scope of irregularities. Its failure to respond to increasing reports of misuse of gacaca for personal and political ends was particularly serious. However, gacacas structural and systemic weaknesses that compromised its suitability to provide fair and impartial trials have been most seriously compounded by the prevailing political climate in the country and the rest rictions on free speech. The governments campaign against divisionism and genocide ideology has had a chilling effect on Rwandans ability and willingness to express themselves. This has been particularly detrimental in the context of gacaca: it has sometimes prevented members of local communities from speaking freely about what th ey saw in 1994 and has made them fearful of the repercussions of testifying in defense of individuals accused of genocide. Rwandans have come to realize that any statement given as part of gacaca can have negative repercussions for them, and many individuals with relevant information chose to remain silent. While only a handful of individuals who testified in gacaca were later formally charged with genocide ideology, divisionism, or minimization of the genocide, many more were accused of perjury or complicity in the genoci de as a result of their testimonymost often when they defended accused persons. The governments decision to remove crimes committed by the RPF in 1994 from gacaca courts jurisdictionwhich meant that some victims would never see justice through the community-based courts or even be recognized as victimsalso limited gacacas potential to foster long-term reconciliation. As the government seeks to bring gacaca to a close, it has recognized that certain miscarriages of justice must be corrected an d has begun formulating a process to review

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Justice Compromised 132 these cases. Some justice officials have been ca ndid, both in public an d in interviews with Human Rights Watch, on the importance of this last stage in securing the legacy of gacaca. Human Rights Watch agrees that this step is of critical importance. Ye t the proposal to have cases which have been identified as potential miscarriages of justice reheard in gacaca, where they first occurred, risks repeating many of the problems outlined in this report. A more judicious option would be for the govern ment to establish a special unit within the conventional justice system to assume this ro le. The unit, which could be located within the Supreme Court, would encompass a two-part review mechanism. First, it would receive appeals from accused persons who claim to have suffered miscarriages of justice or serious due process violations, and would provide an initial screening of these appeals in accordance with certain pre-deter mined legal criteria. In order to limit the number of cases, a review would only be accorded to individuals serving (or facing future) custodial sentences in prison or community service programs. Second, the unit would pass on cases which appear to be well-founded to specialized review panels, headed by professional judges (not gacaca judges) or other legal professionals. Whil e the number of applications received by the unit might be in the thousands, the initial screening process would determine those cases meriting review. The specialized review panelsconsisting of several personswould consider a range of sources of information on the case, in cluding the written record from the gacaca court that handled the case and written submissions from the parties. Where necessary, the review panels could hold short hearings with the parties, hear additional important witness testimony, or request supplemental document ation. With the information gathered, the review panels could issue a final decision, either affirming judgments previously handed down in gacaca or revising judgments (and sentence s) where miscarriages of justice are found to have occurred. This will not be an easy task, and it will require financial support and technical assistance from foreign donors. Human Rights Watch believes this would be a worthwhile investment in maximizing the full potential of gacaca, securing fair and impartial justice for the genocide, and strengthening the Rwandan justice system in the longer term.

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133 Hu man Rights Watch | May 2011 Annex I. Letter to the Rwandan Minister of Justice from Human Rights Watch, March 30, 2011 Tharcisse Karugarama Minister of Justice Ministry of Justice P.O. Box 160 Kigali Rwanda March 30, 2011 Dear Minister Karugarama, Re: Forthcoming Human Rights Watch Report on Gacaca I am writing to inform you that Human Righ ts Watch will be publishing a report on gacaca in the coming months. Based on several years of research and first-hand observation of gacaca trials, the report will analyze the gacaca process from a human rights perspective, outline achievements and areas of concern, and make recommendations aimed at strengthenin g the justice system in Rwanda. We would like to ensure that the Rwandan governments perspective is reflected in our report. The report already includes in formation provided to Human Rights Watch by officials in the Ministry of Justice and the National Service of Gacaca Jurisdictions (SNJG) over the last several year s. However, to ensure that the report is comprehensive and accurate, we would a ppreciate your response to our main findings and recommendations (summarized below) by April 29, 2011 We are also writing to the SNJG to seek their point of view. Aside from these specific issues, we would welcome any additional updates ongacaca and on plans for further reform of the Rwandan justice system relating to future prosecutions for genocide and genocide-related crimes. Kenneth Roth, Executive Director Michele Alexander, Deputy Executive Director, Development and Global initiatives Carroll Bogert, Deputy Executive Director, External Relations Iain Levine, Deputy Executive Director, Program Chuck Lustig, Deputy Executive Director, Operations Emma Daly, Communications Director Barbara Guglielmo, Finance & Administration Director Peggy Hicks, Global Advocacy Director Dinah PoKempner, General Counsel James Ross, Legal & Policy Director Joe Saunders, Deputy Program Director Program Directors Brad Adams, Asia Rachel Denber, Europe & Central Asia (Acting) Daniel Bekele, Africa Jos Miguel Vivanco, Americas Sarah Leah Whitson, Middle East & North Africa Joseph Amon, Health and Human Rights John Biaggi, Film Festival Peter Bouckaert, Emergencies Richard Dicker, International Justice Bill Frelick, Refugees Arvind Ganesan, Business & Human Rights Steve Goose, Arms Liesl Gerntholtz, Womens Rights Boris Dittrich Lesbian, Gay, Bisexual & Transgender Rights (Acting) Joanne Mariner, Terrorism & Counterterrorism Alison Parker, United States Lois Whitman, Childrens Rights Advocacy Directors Philippe Bolopion, United Nations Juliette de Rivero, Geneva Jean-Marie Fardeau, France Lotte Leicht, European Union Tom Malinowski, Washington DC Tom Porteous, United Kingdom Board of Directors James F. Hoge, Jr., Chair Susan Manilow, Vice-Chair Joel Motley, Vice-Chair Sid Sheinberg, Vice-Chair John J. Studzinski, Vice-Chair Bruce J. Klatsky, Treasurer Bruce Rabb, Secretary Karen Ackman Jorge Castaeda Tony Elliott Hassan Elmasry Michael G. Fisch Michael E. Gellert HinaJilani Betsy Karel Wendy Keys Robert Kissane Joanne Leedom-Ackerman Oki Matsumoto Barry Meyer Pat Mitchell Joan R. Platt Amy Rao Neil Rimer Victoria Riskin Amy L. Robbins Shelley Rubin Kevin P. Ryan Jean-Louis Servan-Schreiber Javier Solana Darian W. Swig John R. Taylor Catherine Zennstrm Robert L. Bernstein, Founding Chair, (1979-1997) Jonathan F. Fanton, Chair (1998-2003) Jane Olson, Chair (2004-2010) AMSTERDAM BEIRUT BERLINBRUSSELSCHICAGO GENEVAJOHANNESBURG-LONDONLOS ANGELESMOSCOW NEW YORKPARIS SAN FRANCISCO TOKYO TORONTO W ASHINGTON HUMAN RIGHTS WATCH 350 Fifth Avenue, 34th Floor New York, NY 10118-3299 Tel: 212-290-4700 Fax: 212-736-1300; 917-591-345 Email: hrwn y c @ hrw.or g

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Justice Compromised 134 Summary of findings The forthcoming Human Rights Watch report ackn owledges the enormous challenges the Rwandan government faced in choosing the gacaca system to process such a large number of genocide cases. It notes some of gacacas main achievements, including the sw ift work of the courts, the extensive involvement of local communities in testifying to events which took place during the genocide, and the opportunity gacaca provided to genocide surv ivors to learn what had happ ened to their relatives. The report also notes a number of human rights concer ns, as well as irregularities and violations of due process all of which have resulted in certain compro mises in the delivery of justice for the genocide. Our concerns relate primarily to the absence of fair trial safeguards and limitations on the ability of accused persons to defend themselves effectively. Human Rights Watch documented, among other things, cases where: the presumption of inno cence was undermined; the accused were not provided with adequate information on the charges against them in advance of their trial; the accused did not have sufficient time to prepare a defense; and individuals were tried twice for the same offens es, for example first in a conventional court, then in gacaca, or twice by different gacaca jurisdictions. The report also documents: the misuse of gacaca by private individuals as a way of settling scores or resolving personal grievances unrelated to the genocide; political interference in a number of trials, particularly those of individuals viewed as government critics; corruption of judges, accentuated by the lack of remuneration; intimidation of witnesses; obstacles to witnesses testifying freely in gacaca hearings; the broader political climate in Rwanda whic h has further discouraged many people from speaking out in gacaca trials for fear of repercussions. Repercussions for potential defense witnesses may include arbitrary arrest, accu sations of perjury, charges of genocide ideology or charges of complicity in the genocide. Other concerns relate to some of the fundamental premises of gacaca from the outset, for example the lack of professional legal trai ning for judges and the absence of lawyers for the accused. The lack of professional legal training for judges, in particular, has resulted in divergent practices in different gacaca jurisdictions, for example in standards of pr oof, decision-making, and sentencing, as well as attitudes towards the accused, the civil parties, and members of local communities participating in gacaca trials.

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135 Hu man Rights Watch | May 2011 The report will include individual case studies an d examples from across the country to illustrate these and other patterns observed during gacaca trials. We would appreciate your response to the conc erns summarized above, and in particular, any information on action taken to remedy these problems. Recommendations Like all Human Rights Watch reports, our report on gacaca will make a number of recommendations to the Rwandan government and justice officials, as we ll as to donors to help strengthen the justice system following the closure of gacaca. The closure of gacaca and mechanisms for additional review Human Rights Watch believes that the fair an d impartial handling of outstanding cases, following the closure of gacaca, will be of paramount importance to the legacy of gacaca and to strengthening the Rwandan justice system in the longer term. We understand that the majority of gacaca jurisdictions have closed, but that a small number of cases are still under consideration. Could you confirm how many cases are still open, at what stage they currently stand, and by when you expect them to be resolved? We understand that the current plan is for the SNJG in consultation with ot her state institutions, to review cases in which serious irregula rities or miscarriages of justice ar e alleged to have occurred and to determine whether these cases should benefit from additional review. Could you provide information on the specific criteria for review and the process or mechanism through which they will be reviewed? Human Rights Watch will propose the creation of a specialized unit within the conventional justice system, for example within the Supreme Court, to review appeals from individuals who claim to have suffered miscarriages of justice or serious procedural violations in gacaca. We would recommend that the review be conduc ted by professional judges (not gacaca judges) or other trained legal professionals, and that precise criteria be established for prioritizing the cases to be reviewed. For example, they may pr ioritize review of appeals for individuals still serving (or facing future) custodial sentences. We welcome your comments on this proposal. Future prosecutions of genocide or genocide-related cases We understand that a new bill is currently unde r consideration concerning the prosecution of genocide and genocide-related ca ses after the completion of the gacaca process. Justice officials have informed Human Rights Watch that any new cases would be brought before the national courts.

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Justice Compromised 136 We would appreciate information on action ta ken, or planned, in the following areas: ensuring that any new allegations of participat ion in the genocide are properly reviewed by trained prosecutors and judges before a person is prosecuted in the conventional courts; rectifying violations of double jeopardy, to en sure that no one is prosecuted twice for the same crime, and reviewing all convictions where a person was tried both before a gacaca jurisdiction and a conventional court, or in two or more different gacaca jurisdictions for the same offenses. Other recommendations To ensure that our report reflects measures which may already be underway, we would be grateful if you could inform us of progress in terms of government action in the following areas: measures taken to ensure that st ate agents do not interfere in gacaca or conventional court trials and do not attempt to influence decision-making; measures taken to ensure that all police offi cers and state agents refrain from conducting unlawful arrests and detention, and any prosecutions or disciplinary action taken against individuals responsible for such conduct; measures taken to compensate individuals who have been unlawfully arrested and detained; the prosecution of individuals w ho have falsely accused others; proposals to convert any remaining prison ti me for convicts who have satisfactorily completed community service (TIG ) to a suspended sentence; and revision of the 2008 law on genocide ideology announced in 2010. Thank you in advance for your responses to these questions and any additional information you are willing to share with us. As mentioned above, we would appreciate a response by April 29, 2011 to enable us to incorporate any new information you may provide in our report. You can reach me at rothk@hrw.org Yours sincerely, Kenneth Roth Executive Director

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137 Hu man Rights Watch | May 2011 Annex II. Response to Human Rights Watch from the Rwandan Minister of Justice, May 5 2011

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Justice Compromised 144 Acknowledgements This report was researched and written by Le slie Haskell, Rwanda Researcher at Human Rights Watch, and contains information gathered by several local gacaca observers and previous Human Rights Watch researchers. The report was edited by Carina Tertsakian, Senior Researcher, and by Rona Peligal, Depu ty Africa Director. Valuable feedback was provided on an earlier draft of this report by Sara Darehshori, Senior Counsel in the International Justice Program, Lars Waldorf, former Human Rights Watch researcher in Rwanda and senior lecturer at the Centre for Applied Human Rights (University of York), and Zarir Merat, former head of mission at Avocats Sans Frontires in Rwanda. It was reviewed by Aisling Reidy, Senior Legal Advisor, and Babatunde Olugboji, Deputy Program Director. Additional assistance was provided by Rachel Nicholson, Lianna Merner, Grace Choi, Anna Lopriore, and Fitzroy Hepkins. Danielle Serre s, with the assistance of Simon Marrero, translated the report into French. Peter Huvos, French website editor, vetted the translation. This report would not have been possible with out the support of Alison Des Forges, Senior Advisor in the Africa Division, who died tragic ally in February 2009, and her husband Roger Des Forges. Human Rights Watch would like to thank the hundreds of Rwandans who shared their personal experiences and views of gacaca with us over the past 10 years. Some individuals were fearful of the consequences of speaki ng with Human Rights Watch but still came forward courageously to provide their stories. We would also like to thank the Minister of Justice, the SNJG Executive Secretary, and the many other justice officials who agreed to be interviewed and who provided valuable information.

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I. Summary -- II. Recommendations -- To the Rwandan Government -- To Rwandan Justice Officials -- To the Rwandan Legislature -- To Donors -- To Countries Considering the Use of Dispute Resolution Mechanisms Similar to Gacaca to Prosecute Serious Crimes -- III. Methodology -- IV. The Rwandan Genocide and the Decision to Use Gacaca -- V. The Initial Phase of Gacaca -- Differences between the Customary and Contemporary Gacaca Systems -- The Legal Framework Governing Genocide Cases and Gacaca Courts -- Rwanda's first genocide law -- The gacaca laws -- Gacaca's Pilot Phase -- National Implementation of Gacaca -- Repeated Extensions of Gacaca's Closing Date -- The Final Phase of Gacaca -- VI. Balancing Community-Based Conflict Resolution Practices with Fair Trial Standards -- Limited International Fair Trial Rights in Gacaca -- The right to counsel -- The presumption of innocence -- The right to be informed of the case and to have time to prepare a defense --^
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The right to present a defense -- The right to testify in one's defense and the right against self-incrimination -- Protection from double jeopardy -- The right to be present at one's own trial -- The right not to be arbitrarily detained -- Differences in Judicial Standards between Conventional Courts and Gacaca -- Judges: qualifications, training, remuneration and removal -- Burden and standards of proof -- Sentencing and Reparations -- Provisional releases -- "Life imprisonment with special provisions" -- Community service -- Compensation -- VII. The Community Dynamic of Gacaca -- Community Participation -- Risks for Witnesses -- Risk of arbitrary arrest and detention or being charged with committing perjury or complicity in genocide -- Fear of being ostracized by the community -- Intimidation -- Gacaca as a Means of Resolving Personal Grievances -- Silencing Opponents and Critical Voices -- The case of Dr. Thoneste Niyitegeka -- The case of Father Guy Theunis -- Other cases --^
^^
VIII. Independence and Impartiality of the Gacaca Process -- Potential Conflicts of Interest for Judges -- Corruption and Personal Gain through Gacaca -- Judges requesting bribes -- Accused persons seeking exoneration -- Genocide survivors seeking compensation -- External Interference in Decision-Making -- IX. Rape Cases: the Antithesis of Gacaca -- The Decision to Transfer Rape Cases to Gacaca -- Rape Cases that Were Not Brought before Gacaca -- Rape Victims' Perspectives on Gacaca -- X. Selective Justice and the Failure to Address Rwandan Patriotic Front Crimes -- XI. Perspectives on Gacaca -- Genocide Survivors' Perspectives -- The Perspectives of Those Accused of Genocide and their Families -- Reconciliation Achieved? -- XII. International Support for Gacaca -- XIII. Conclusion -- Annex I. Letter to the Rwandan Minister of Justice from Human Rights Watch, March 30, 2011 -- Annex II. Response to Human Rights Watch from the Rwandan Minister of Justice, May 5 2011 -- Acknowledgements.
520
"Since 2005, just over 12,000 community-based gacaca courts in Rwanda have heard more than 1.2 million cases against people accused of involvement in the country's 1994 genocide. The local population across the country participated in these trials, and judges were lay members of the community. The objectives of gacaca were to deliver justice for the genocide, reduce the massive prison population, and foster reconciliation. This ambitious experiment in transitional justice leaves behind a mixed legacy. Recognizing the enormous challenge the Rwandan government faced in building a system to rapidly process tens of thousands of cases, this report notes some of gacaca's achievements, including the swift work of the courts, the extensive participation of local communities, and the opportunity for genocide survivors to learn what happened to their relatives. Gacaca may also have helped some victims find a way to live peacefully with neighbors who may have perpetrated crimes against them or their families. However, the longer-term processes of justice and reconciliation remain fraught and incomplete. Rwandans have had to pay a price for the compromises made in applying community-based justice to crimes as serious as genocide. Mixing elements of a modern punitive legal system with more informal conflict-resolution traditions, gacaca lacked a number of important safeguards against violations of due process. Based on Human Rights Watch's extensive trial observations and interviews, and drawing on more than 350 gacaca cases, the report explains how justice has been compromised in many cases. t highlights a wide range of fair trial violations, including limitations on accused persons' ability to effectively defend themselves, intimidation of defense witnesses, flawed decision-making due to inadequate training for lay judges and insufficient guidelines on the application of complex criminal law concepts. Many decisions were likely influenced by judges' ties to the parties in a case or their pre-conceived views of what happened during the genocide. Other cases suggest that accusations of participation in the genocide were no more than trumped-up charges linked to disputes between neighbors and relatives or to the government's attempts to silence critics. Corruption by judges and interested parties was a constant threat to the integrity of the system and some judges had to be removed on that basis. As gacaca draws to a close, the Rwandan government should ensure that a specialized unit of the conventional court system reviews alleged miscarriages of justice. mpartial handling of these cases will be of paramount importance to the legacy of gacaca and to strengthening the Rwandan justice system in the longer term."--P. [4] of cover.
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