The price of reconciliation:restorative justice in South Africa’s

Truth and Reconciliation Commissionand Rwanda’s Gacaca Courts

■ Janice Lim

1. Introduction and thesis

Tj estorative justice models are A V increasingly being adopted in post­conflict societies. Restorative justice, as distinct from retributive justice, shifts the emphasis of the crime from being against the state to being against the individual. It is based on principles of victim reparation, community involvement, and reintegration of both perpetrators and victims into society1. Criminal justice, though effective in limited instances of deviation from normative standards of behaviour, is less effective in societies where violence has been perpetrated by large segments of the population. In such situations, restorative justice models may be utilized to supplement the criminal justice system. Institutions of restorative justice have taken on different manifestations in various societies. In South Africa, the Truth and Reconciliation Commission (“TRC”) was established whereas in Rwanda restorative justice was embodied within the Gacaca Courts. It is submitted that, despite problems inherent within these institutions, the TRC and the Gacaca Courts have made significant achievements in providing an accessible avenue for justice by increasing

the availability of redress for victims and by addressing entrenched divisions between different ethnic groups who live in the same society.

2. The South African model

In South Africa, the peaceful transition from apartheid regime was achieved as the result of a compromise. The apartheid National Party government turned over power to the African National Congress on several conditions - one of which was to refrain from a retributive backlash against perpetrators of human rights violations.2 As a result, the TRC was given powers to grant amnesty to those individuals provided that the act in question was associated with a political objective in the course of conflict and that the accused provided a full account of allrelevant facts relating to the alleged crime.3

The South African Truth and Reconciliation Commission had four primary objectives. The first was to establish a complete picture of the causes, nature, and extent of violations of human rights during apartheid. The second was to offer full amnesty to perpetrators of

human rights abuses who admitted their crimes and disclosed details surrounding their commission. This facilitated the achievement of the third objective, which was to find out and make known the whereabouts of victims, to provide victims with the opportunity to understand and come to terms with the crimes committed against them, and to make recommendations regarding reparations to be made to victims. The fourth was preventative in its aim - to compile a report discussing the TRC’s investigations and findings and to make recommendations regarding possible measures to be used to prevent such future violations of human rights4.

3. The Rwandan model

In Rwanda the genocide that resulted in the deaths of approximately 80,000 people5 ended in 1994 when the Tutsi- dominated Rwandan Patriotic Front came into power. In striving to achieve full accountability for the genocide, the new government found itself with the formidable task of bringing nearly 125,000 suspected perpetrators of genocide to justice.6 The sheer volume of cases that needed to be tried overwhelmed local courts. In response, the government passed the Gacaca Law in 2001, authorizing Gacaca to try certain crimes which occurred during the genocide including homicides, serious assaults, and offences against property.7

“Restorative justice ... is based on principles of victim reparation, community involvement, and reintegration of both perpetrators and victims into society.”

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Gacaca were traditional Rwandan restorative justice community institutions used for the settlement of civil disputes8. The word “gacaca”, literally meaning “grass”, was used to describe the courts because disagreements were traditionally settled by the parties “sitting in the grass” and together finding a solution to the issue at hand9. They resembled courts with respected figures serving as judges and community members participating in hearings. Judges, known as “inyangamugayo” or “persons of integrity” were elected from amongst adult members of the community10.

Community members participated in the restorative process by providing information about the victims and the perpetrators. In addition, they assisted the court in determining the appropriate type and scope of reparation to be made11. Principles of restorative justice governed Gacaca courts, in which emphasis lay in impressing on the mind of the offender the gravity of the crime committed and by seeking reconciliation between the offender and the community12.

4. Truth at what price?

4.1 Lost justice: amnesty provisions

Critics of the TRC claim that truth was bought at too high a price and that a more just outcome could have been obtained for victims by employing the more traditional retributive justice model. Under the TRC system, for owning up to their crimes, perpetrators were granted full amnesty. Furthermore, victims were deprived of the right to seek punitive redress from the criminal justice system and were denied the right to seek compensation from civil courts.13

Although a limited right to appeal amnesty decisions on points of law existed, it was rarely utilized because of the associated difficulties faced by plaintiffs such as the cost and lengthy duration of such appeals.

4.2 Exacerbation of conflict

Another problem inherent within the truth and reconciliation approach was that revisiting episodes of violence had the potential to inflame rather than resolve conflict between opposing ethnic groups. The massacre of the Tutsis by

the Hutus is attributed by some commentators to inter-ethnic hostility, a high degree of deference to authority and a lack of civil society.14 Gacaca’s restorative justice approach tried to explain the genocide by bringing individuals of different ethnicities together to discuss the causes of the violence and to attempt to find solutions to underlying social problems so that future attacks against specific ethnic groups could be prevented. As a result of the sensitive issues discussed, the use of the restorative model involved a real risk of the forum backfiring and, instead of serving as a means for reconciliation, would instead cause further arguments and further violence.

A similar problem with the restorative approach was encountered in South Africa. According to a Xhosa15 participant in a study that surveyed South Africans’ perceptions of the TRC’s effectiveness in bringing about reconciliation, the process only opened scars that took years to heal and in most cases undesired information was given that made it more difficult for the victim’s family to grasp or to forgive the crime16. In the same study, it was found that

although the majority of participants believed that the TRC was effective in bringing out the truth17, very few of the participants believed that the TRC was effective in bringing about reconciliation.18

5. The efficacy of the TRC and Gacaca courts

5.1 Was truth enough?

Given the shortcomings of the TRC and Gacaca restorative justice models, many have asked the question: is the recovery of the truth justification enough to warrant their use? Evidently, the value of restorative justice as a means of healing lives and societies torn apart by widespread violent crime is dependent on the circumstances of the crime and the point of view of those affected. For some, obtaining a truthful account of what transpired was integral to healing19. Flowever, others wished for punitive measures to be taken against human rights violators.20 For these people, amnesty was too high a price to pay for truth, which they saw as a paltry benefit compared to the retributive justice denied to them.

Punishment under the restorative model

The public nature of the TRC and Gacaca trials served as a compromise between competing aims of retributive and restorative justice because it functioned as an alternative sanction to retribution for crimes committed. In both South Africa and Rwanda, cases were tried in public. Those who confessed their crimes were made to write formal confessions of their wrongs and submit them to TRC’s Committee on Amnesty. Perpetrators of more serious crimes were usually required to appear in a public hearing and were subjected to ‘name and shame’ procedures - including having their hearings broadcast on radio or television, as well as having their names published in

“Critics of the TRC claim that truth was bought at too high a price ... [u]nder the TRC system, for owning up to their crimes, perpetrators were granted full cUTHlCSty.”

5.2 Justifying factors

Reconciliation has many forms: the Sea of Hands installation is an Australian initiative that demonstrates Australians’ support for reconciliation with Aboriginal Australians. Photograph by Doreen Chen

government publications and reports21. Public exposure of the identity of the perpetrators and of the crimes they committed served as a form of punishment to the perpetrators as they would be subject to the censure of families, friends, and communities. The degree of punishment depended on the circumstances of the individual. A recent study22 which examined the reactions of communities towards perpetrators who had been subject to TRC proceedings found that for some individuals censure was minimal or non-existent. In extreme cases, individuals upon their return to their communities were treated as liberation fighters who had acted in the pursuit of a just cause23. However, in contrast other perpetrators were ‘branded’ by their crimes and were outcast from their families and wider society.24 Reintegration into the community for these individuals took greater time and their period of exclusion imposed criminal justice style punishment even though perpetrators were tried under a restorative model of justice.

A MORE PRACTICAL SOLUTION

The presumption that a better justice would have been found under the retributive system assumes that victims would have pleaded their cases before the courts, would have obtained convictions, and would have received compensation for crimes committed against them.

However, the availability of justice under the conventional judicial system was limited. Courts in post-apartheid South Africa were overburdened, overrun with corruption and would likely have been unable to meet the burden of trying crimes committed during apartheid25. In

comparison with the number of people who sought justice through the TRC, it is submitted that significantly fewer people would have brought their cases to court under the criminal justice system. In addition, due to difficulties in obtaining evidence and confessions, the high burden of proof required to obtain a criminal conviction and victims’ lack of access to high quality legal representation, many cases against perpetrators may not have been successful.26 In fact, several cases involving high-ranking officials from the apartheid regime such as those against Magnus Malan, the former Minister of Defence, and Dr. Woutyer Basson, head of the chemical weapons program, resulted in acquittals when they were tried in court.27

In making justice more accessible to a larger number of plaintiffs, who otherwise may not have been able to seek justice through the criminal justice system, the TRC was an effective means for bringing about widespread resolution

to crimes. Without the TRC, these crimes would likely have gone unaddressed through legal avenues. Although the TRC did not punish perpetrators to the same extent as would have been done under the criminal justice system, the TRC at the very least was able to obtain a broad account of crimes committed. This sense of accountability arguably influenced the public perception of whether justice had been served and may have provided the closure necessary to allow people affected by apartheid to heal as individuals and to commence participation in society.

Reparations

While eliciting the truth was a key function of the TRC and the Gacaca, reparation was also a crucial part of their mandate. The South African Reconciliation Act included provisions for reparations to be made to victims and their families28. Gacaca emphasizes restorative behaviour such as admissions of shame, guilt, and regret by the accused29 as well as restorative punishment such as community service for lower level crimes30. Both the TRC and Gacaca involve victims in throughout the process of justice - from articulating what happened to them to being compensated for harms suffered.

“Public exposure of the identity of the perpetrators and of the crimes they committed served as a form of punishment to the perpetrators as they would be subject to the Censure of families, friends, and communities.”

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Reconstructing divided societies

The social tensions that caused the massacres in South Africa and Rwanda did not vanish with the cessation of conflict. The restorative approach of Gacaca sought to address the reasons for the ethnic conflict and to repair its broken society. By requiring different ethnic groups to work together, Gacaca sought to promote peaceful resolution of conflict.31 Given that the genocide was incited by the government32, Gacaca also aimed to develop an active civic culture that would solve the problem of over­deference to authority by cultivating a healthy dose of scepticism of state power.33 Such scepticism fostered through the Gacaca model may serve not only to prevent future violence, but may also curb future arbitrary exercise of power by the government.

6. The future of restorative justice

Restorative justice models used in other societies vary from the models employed in South Africa and Rwanda so that they will fit the particular circumstances at hand and address the problems particular to that society. Similar models to those used in South Africa and Rwanda were adopted in the former Yugoslavia in the form of the Yugoslav Truth and Reconciliation Commission (“YTRC”),34 and in East Timor in the form of the Commission for Reception, Truth and Reconciliation (“CAVR”)35. However, as these examples show, while some aspects of restorative justice institutions can be changed to suit particular circumstances, in order for them to be successful the political will of the government to see that justice is done must exist.

In Yugoslavia the YRTC report focused more on explaining the causes of conflict than it did on the human rights violations that had been committed.36 According to some, the YTRC, which was formed during a period of intense international pressure upon the Serbian government to

extradite war criminals37, was intended more to be a means of placating the international community than it was intended to be a genuine instrument of restorative justice.38 The YRTC consequently faded out of existence two years after its establishment.39

In East Timor, the CAVR has not been given jurisdiction over serious crimes such as murder or rape, which instead are tried in local criminal courts. It is submitted that by limiting the jurisdiction of the CAVR, the Indonesian government has been able to exercise a high level of control over the outcome of cases involving human rights abuse in East Timor. To date, most of the people found guilty of such crimes still serve in the army and some have even been promoted. None have served any time in prison.40

7. Conclusion

In conclusion, it is submitted that restorative justice institutions such as the TRC and Gacaca play a crucial role in post-conflict societies. Institutions of international criminal justice such as the International Criminal Tribunal for the Former Rwanda are empowered to try crimes that violate international humanitarian law. In contrast, the TRC and Gacaca conduct a broader societal accounting of past events, examine the root causes of these events, and make recommendations for averting future outbreaks of violence.

The governing philosophy behind models of restorative justice is that for societies to move forward, there must be a truthful accounting of the past. In cases like Rwanda and South Africa where

The governing philosophy behind models of restorative justice is that for societies to moveforward, there must be a truthfulaccounting of the past. In cases like Rwanda and South Africa where widespread violence was perpetrated by large segments of the community, it is essential that justice is available for and is accessible to a majority of society.”

In contrast to the YTRC and the CAVR, the Gacaca and TRC were strongly state- sponsored and were the result of genuine attempts to explain, heal, and resolve inter-ethnic hostilities. Evidently, political will is necessary to structure, sustain, and fund institutions of restorative justice. Even more significantly, political will is necessary to ensure that accountability is created for harm caused and that reparations are made to assist in the rectification of damage. Without such political backing, any potential institutionof restorative justice is likely to be a hollow structure of form without substance.

widespread violence was perpetrated by large segments of the community, it is essential that justice is available for and is accessible to a majority of society. Restorative justice makes these goals achievable. Restorative justice institutions also help lay groundwork for rebuilding society. While not without flaws, they are a valuable supplement to the criminal justice system and are likely to be used further in the future. M

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Endnotes

1 Truth and Reconciliation Commission, “Truth and Reconciliation Commission of South Africa Report (1998) Vol 1, 126. {“TRC Report“)2 Garkawe S “The South African Truth and Reconciliation Commission: A Suitable Model to Enhance the Role and Rights of the Victims of Gross Violations of Human Rights?” (2003) 27 Melbourne University Law Review 334 at 346.3 Promotion of National Unity and Reconciliation Act 1995 (South Africa) s 20 (b)-(c) (“Reconciliation Act“).4 Reconciliation Acts 3(l)(a)-(d).5 “Rwanda Killers Face Local Justice” BBC News (10 March 2005) <http://news.bbc.co.Uk/l/hi/world/africa/4335405.stm> (Accessed 24 July 2005)6 Drumbl M, “Punishment, Postgenocide: From Guilt to Shame to Civis Rwanda” (2000) 75 New York University Law Review 1221 at 1233.7 Rape cases are heard by the criminal courts while important cases regarding orchestration and genocide were heard by the International Criminal Tribunal for Rwanda. See Note 5.8 Sarkin J, “The Tension Between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process, and the Role of the Gacaca Courts in Dealing with the Genocide” (2001) 45 Journal of African Law 143 at 159.y Honeyman C, Gacaca Jurisdictions: Transitional Justice in Rwanda, Draft Report, <http://www.fas.harvard.edu/~socstud/rwanda/> (Accessed 24 July 2005). This was a report regarding the initial phase of the Gacaca presented at the request of the Rwandan Supreme Court in August 2002.10 Note 9." Note 9. See also Note 5.12 Tully D, “Human Compliance and Gacaca Jurisdiction in Rwanda” (2003) 26 BC Infl & Comp L Rev 385 at 396.13 Reconciliation Act s 20(7)(a).14 Wierzynska A, “Consolidating Democracy Through Transitional Justice: Rwanda’s Gacaca Courts” 79 (2004) New York University Law Review 1935 at 1940-42.15 The Xhosa are one of the major Black ethnic groups in South Africa.16 Vora J and Vora E “The Effectiveness of South Africas Truth and Reconciliation Commission: Perceptions of Xhosa, Afrikaner, and English South Africans” (2004) 34 Journal of Black Studies 301-322 at 315. The study involved 158 participants at a major South African university.17 Note 15 at 309. The results of the study showed that 60% of Afrikaner participants, 60% of the English participants, and 81% of Xhosa participants thought the TRC was effective in bringing out the truth.18 Note 15 at 310. The results of the study showed that 100% of the Afrikaner participants, 75% of English participants, and 37% of Xhosa participants thought the TRC was ineffective in bringing about reconciliation.19 Note 2 at 355. See also Note 1 at 112-13.20 Wilson S, “The Myth of Restorative Justice: Truth, Reconciliation and the Ethics of Amnesty” (2001) 12 South African Journal on Human Rights 531 at 547.21 Note 2 at 356.22 Abrahamsen T and van der Merwe H, “Reconciliation through Amnesty? Amnesty Applicants’ Views of the South African Truth and Reconciliation Commission” (2005) Cape Town: Center for the Study of Violence and Reconciliation, <http://www.csvr.org.za/papers/paptahv.htm> (Accessed 23 July 2005)23 Note 22.24 Note 23.25 Note 2 at 359.26 Note 2 at 356.27 Note 2 at 359. See also S v Basson [2003] All SA 54.28 Reconciliation Act s 25(1 )(b)(i).29 Braithwaite J and Strang H (eds), Restorative Justice and Civil Society (Cambridge: Cambridge University Press, 2001) at 1.30 Note 12 at 400.31 Note 18 at 1961.32 Des Forges A “Leave None to Tell the Story”: Genocide in Rwanda (New York: Human Rights Watch, 1999) at 1-2. See also Note 18 at 1935.33 Note 18 at 1938.34 Decision on the Establishment of the Truth and Reconciliation Commission, Official Gazette of the Federal Republic of Yugoslavia, No. 15/2001 (30 March 2001).35 UNTAET Regulation 2001/10, On the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor s l(j) (13 July 2001). <www.un.org/peace/ etimor/untaetR/UntaetR.htm> (Accessed 23 July 2005)36 Ilic D “The Yugoslav Truth and Reconciliation Commission” (2004) Eurozine <http://www.eurozine.com/article/2004-04-23-ilic-en.html> (Accessed 24 July 2005)37 Nikolite-Ristanovise V “Truth and Reconciliation in Serbia”. Paper presented at 2004 Conference “Truth and Reconciliation in the Former Yugoslavia”(Belgrade, 15-17 October 2004) <http://www.vds.org.yu/indexE.html> (Accessed 24 July 2005)38 Note 36.39 Note 36.40 Evans L “Forgiveness in East Timor: But Where is the Justice?” UCLA International Institute (May 28, 2004) <http://www.international.ucla.edu/article.asp?parentid=11589 > (Accessed 24 March 2005)