Rape survivors feared their identities would be revealed to their communities despite the fact that testimony in rape cases was to be heard behind closed doors |
But Leslie Haskell, author of the HRW report, noted that of the more than 20 rape survivors interviewed for the report, only one expressed a preference for gacaca over conventional courts. For others, who said they had been reluctant to come forward and file complaints but had done so because they believed conventional courts would protect their privacy, the transfer to gacaca "took them by surprise and left some feeling betrayed", the report states.
Rape survivors feared their identities would be revealed to their communities despite the fact that testimony in rape cases was to be heard behind closed doors, Haskell said. Because trials were held near administrative offices or schools in many cases, third parties would still be able to see a complainant enter a room with a judge and her alleged assailant. "You'd still know it was a rape case, but if all went well you wouldn't know what the details were," Haskell said.
The report states that "a few" of the women - some of whom had not told their families about the rape and did not want the community to know - decided to drop their cases after they were transferred to gacaca.
However, the report also notes that provisions were put in place to make it easier for rape survivors to testify: they were able to challenge judges they believed were biased or would not respect their privacy; and they could write letters detailing their allegations rather than appearing in person.
Bikesha highlighted these "safeguards" in claiming that the rape cases had been "really successful", adding that "whoever dares to reveal secrets" could be subject to "punishment". (He did not specify what that punishment might be.)
Privacy compromised
According to the report, the process of bringing rape cases before gacaca ended up being "less traumatic" than many survivors expected. "For most women, the experience of appearing in gacaca was emotionally difficult, and more difficult than they believed a conventional court trial would have been, but their cases proceeded relatively smoothly," the report states.
However, the report does cite some cases in which privacy appeared to have been compromised, with reports of intimidation and accusations of false testimony.
Clark, who observed many gacaca trials as part of his research, said "maintaining privacy was a real problem. A lot of this has to do with the closeness of Rwandan communities. It's almost impossible for any legal process to hide people's identities. People know each other. They're very aware when people are summoned to give testimony."
Photo: IRIN |
Justice promoted: A poster urging people to participate in gacaca courts |
Despite reports of intimidation, Jane Abatoni Gatete, former executive secretary of the Rwandan Association of Trauma Counsellors, who now works independently with trauma victims, including some who have brought rape cases before gacaca, said she believed the system had generally served survivors well.
"Steps were put in place by the government, and they were acting to make sure those women were protected and maybe counselled and advised to come forward and give the testimony," she said. "If they didn't then maybe their cases would not have been heard."
Fair trial rights
Beyond the privacy rights of rape survivors, the HRW report also raises concerns about the fair trial rights of the accused.
Because gacaca does not involve lawyers, the process has long been open to criticism that suspects are unable to prepare an adequate defence. One of the government's justifications for not involving lawyers - in addition to the fact that there simply were not enough - is that community participation negated the need for them. If a witness lied, for instance, community members could speak out.
With rape cases being held in camera, however, the community cannot participate at all, Haskell noted.
"It was sort of a Catch-22, right? The gacaca system was built on this idea of public participation to call out prejudicial partiality or lies on account of any of the parties who were testifying," Haskell said. "The problem with that is because they are behind closed doors, because there's no public participation, because there's no monitoring by rights groups, it could've been easier to manipulate."
Clark said Rwandans had been taken aback by this feature of the rape cases. "There was a great deal of frustration at the community level that people had had very public hearings for all of the previous crimes, and then suddenly these very contentious rape cases were being held behind close doors where the community couldn't hear and couldn't participate," he said.
But he added that, in light of HRW's concerns about privacy, this criticism struck him as "a bit rich. I have to say on that particular point it does look like Human Rights Watch are having their cake and eating it, too," he said. "They can hardly criticize open rape cases and then turn around and criticize the fact that they're being held behind closed doors."
The Rwandan government has said that there are no more than 100 gacaca cases remaining, and Clark said he expected the government, which has missed previous deadlines, to stick to the current plan of shutting down the system by December.
If gacaca does end this year, Clark said its record on sexual violence cases would be decidedly mixed, but that the decision to transfer them from conventional courts would also be remembered as "inevitable. I really don't think there was any other way the government could have done it," he said.