Embassy Comments on Vatican Note on Gacaca

UNCLAS SECTION 01 OF 03 KIGALI 000405

SIPDIS

DEPT FOR AF/C AND DRL
DEPT ALSO FOR EUR/WE JLARREA

SIPDIS

E.O. 12958: N/A
TAGS: PHUM PREL SOCI KDEM KJUS VT RW
SUBJECT: Embassy Comments on Vatican Note on Gacaca

REF: A. VATICAN 0059


B. KIGALI 393


1. Summary: Ref (A) Vatican note criticizes the gacaca
tribunals in Rwanda for not serving the purposes for which
they were created. It characterizes the gacaca process as
politically manipulated and procedurally flawed, citing
specific concerns. While Embassy recognizes, as does the
GOR, that there are weaknesses in the system, in its view
the note does not accurately reflect the process. Post
raised with the Director of the Legal Unit, National Service
of Gacaca Jurisdictions, some of the cited areas of concern.
He held that there is no presumption of guilt against those
who appear before gacaca. Evidence against the accused is
presented publicly during an open-forum evidentiary hearing
where everyone is given the opportunity to comment on the
evidence and the individual. The accused are allowed to
have others testify on their behalf. Prisoners are not
given reduction or suspension of sentence for denouncing
accomplices, and the penalty for providing false testimony
is imprisonment. He asserted that gacaca was established as
an independent body and is not subject to political
influence. It does not target Hutus or property owners but
individuals from every sector of Rwandan society who
participated in the genocide. End summary.

Provisional Release of Prisoners
--------------


2. The paper notes that innocent individuals remain in
prison while those responsible for the genocide are freed,
creating resentment among both Hutus and Tutsis.


3. Comment: The approximately 50,000 prisoners who were
provisionally released by presidential decree between 2003
and 2005 were the elderly, sick, minors, or those charged
with less serious genocide crimes (categories 2 and 3) who
had already served out their maximum sentences and had
received credit for time served. According to the
International Committee of the Red Cross, the provisional
release relieved some of the overcrowding in prisons,
improving the prison standards for the remaining prisoners.
Subsequently, some of the released prisoners were returned
to prison based on additional evidence implicating them in
Category 1 genocide offenses.

False Denunciations
--------------


4. The paper states that detainees can plead guilty and
denounce their accomplices in exchange for a reduction or
suspension of sentence. As a result, false denunciations
have exacerbated hatred and mistrust, undermining the
reconciliation process and the search for truth.


5. Comment: According to Augustin Nkusi, Director of the
Legal Unit, National Service of Gacaca Jurisdictions, the
number of false denunciations is very small; he estimated it
at less than 10 percent. Of the 7,000 accused genocidaires
tried since last year during the pilot phase, approximately
600 were acquitted based on factors related to the strength
of the evidence, not due to false denunciations. At the
beginning of the pilot phase, approximately 20 percent of
those accused were acquitted; the acquittal rate is now an
estimated 12 percent.


6. Individuals may be found guilty by a panel of gacaca
judges on the basis of a single person providing credible
testimony. The penalty for providing false testimony, as
determined by the panel of judges, is 3-6 months'
imprisonment for first-time offenders, and 6-12 months'
imprisonment for recidivists. The panel of judges has the
authority to release falsely denounced individuals. Nkusi
estimated that 600 individuals, in additional to the 600
acquitted after trial, were released during the pilot phase
prior to trial after it was determined that they were
falsely accused.


7. Detainees do not receive a reduction or suspension of
sentence for denouncing accomplices, but can get reduced or
suspended sentences for confessing to their own crimes.
Conviction of a Category 1 crime (rape, other sexual
offenses, or planning the genocide) is punishable by death
or life imprisonment, or a reduced penalty of 25-30 years if
the accused confesses prior to the information-gathering
phase. If the accused confesses after the information-
gathering phase, there is no reduction of sentence (although
there is currently a proposal to provide some reduction).


8. Conviction of a Category 2 offense (intentional killing,

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causing injury with intent to kill, or causing injury
without intent to kill) carries a sentence of 25-30 years'
imprisonment, or a reduced sentence (half-time in prison,
half-time in community service) of 12-15 years with
confession after the information-gathering phase, or 7-12
years with confession prior to the information-gathering
phase. Conviction of a Category 3 offense (crimes against
property) carries only a fine. (Note: In June 2004, then
Category 2 (causing injury with intent to kill) and Category
3 (causing injury without intent to kill) were combined into
one category (current Category 2),resulting in a three-
category system. According to Nkusi, the two categories
were combined because it was difficult for gacaca judges to
determine individual intent. End note.)

Preparation of Dossiers
--------------


9. The paper estimated that over 20,000 innocent people (or
20 percent of the prison population) remain imprisoned
because they have not pled guilty or denounced others, and
noted that there are no files on these individuals that
would allow them to appear before a gacaca tribunal.


10. Comment: Nkusi maintained that those remaining in
prison have either confessed to their crimes or were
arrested and imprisoned prior to the establishment of the
gacaca tribunals. He explained that when the gacaca process
establishes the innocence of imprisoned individuals, they
are unconditionally released. Currently, there are 5,000
petitions for the release of prisoners who were found not
guilty by prison gacaca tribunals. (Note: In addition to
the gacaca tribunals in each community, there are gacaca
tribunals within the prison system, one in each prison. End
note.) The National Service of Gacaca Jurisdictions is in
the process of reviewing those petitions.


11. Nkusi explained that preparing a dossier on a prisoner
is difficult and time-consuming, especially in cases where
witnesses have died. In addition, in the immediate
aftermath of the genocide and civil war, the Rwandan
Patriotic Army (RPA) dealt with the chaotic situation in
various ways; in some cases the military arrested
individuals without properly documenting the arrests. As a
further complication, during the massive repatriation of
Rwandans from DRC in 1996, some voluntarily confessed their
crimes to police and were imprisoned but are now retracting
their confessions. (Note: In 1996, up to 2 million
Rwandans living in eastern DRC returned to Rwanda after the
RPA entered the DRC to pursue ex-Rwandan Armed Forces and
genocidaires. End note.)

Educated Hutus and Property Owners
--------------


12. The paper alleges that the accused are primarily
educated Hutus or property owners, and that "political
authorities" determine beforehand the individuals to be
judged and the sentences to be applied.


13. Comment: There has been no survey or other evidence to
support the view that the accused are primarily educated
Hutus or property owners. In fact, given that approximately
82 percent of Rwanda's population is involved in subsistence
agriculture, it is likely that those accused are primarily
uneducated farmers. Nkusi maintained that gacaca does not
target specific categories of individuals. Individuals from
every sector of Rwandan society were involved in the
genocide because of the way in which the former government
orchestrated it -- horizontally and vertically throughout
the population. He noted that for the most part educated
people did not participate directly in the killings but did
incite violence, a crime punishable under gacaca.


14. According to Nkusi, decisions on the individuals to be
judged or sentences to be applied are not made a priori.
All decisions are made by majority vote (minimum of 5 votes)
by a panel of 9 trained gacaca judges after listening to and
weighing all the testimony presented for and against the
accused.

Atmosphere of Gacaca
--------------


15. The critique notes that the atmosphere is tense, that
the majority of gacaca participants are hostile towards
those who are brought before the tribunal. It also notes
that there is a presumption of guilt against those who
appear before gacaca, that innocence must be proven, which
is difficult for the majority of those coming from prison,

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and that defense lawyers are prohibited.


16. Comment: The atmosphere may be tense, as in any
regular courtroom, as accused perpetrators come face to face
with survivors and victims' families, sometimes for the
first time since the genocide. However, Nkusi held that
there is no presumption of guilt against those who appear
before gacaca. Before an individual is brought before
gacaca for trial, an accusation must first have been made
against that individual and an evidentiary hearing held.
During the hearing, evidence is presented publicly, and
anyone is free to comment on the evidence and the
individual.


17. There are no designated defense lawyers because, unlike
the regular court system, gacaca is an inclusive,
participatory process in which everyone has equal standing
and lawyers do not dominate. Lawyers, however, in their
private capacity as Rwandan citizens, are free to speak in
defense of accused individuals, and the accused are allowed
to have witnesses testify on their behalf. Nkusi explained
that by law everyone is required to provide information on
the genocide and that such information is not an
"accusation," per se, but a necessary element of the
information-gathering phase.

Political Authorities and Ibuka
--------------


18. The paper states that "the whole process seems to be a
set-up." Although in theory everyone has the right to speak
up, in practice the "political authorities" and members of
Ibuka (Association of Genocide Survivors),"who are under
the strong influence of the regime," speak first, and some
are paid to provide false testimony.


19. Comment: Nkusi stated that the law is clear on the
issue of interference. If interference is reported, it is
investigated and the individuals involved are denounced.
Gacaca tribunals were established by law as independent
bodies and are not subject to political influence.
Decisions are not made a priori. They are made by majority
vote by a panel of 9 judges on the basis of testimony voiced
during the gacaca proceeding. "Political authorities" and
Ibuka members, like any other member of the community, are
free to speak as individuals in their private capacity and
do not speak on behalf of their organization or party.


20. Nkusi speculated that there may be some confusion
because people tend to equate genocide survivors with Ibuka
and, therefore, may believe that when an Ibuka member speaks
he is speaking on behalf of the organization. He observed
that although there may be some reticence among Rwandans in
accusing others, especially relatives or friends whom they
wish to protect, survivors have a vested interest in
denouncing genocidaires and seeking justice.

Upcoming Trials
--------------


21. There are 12,103 gacaca courts throughout the country.
To date, approximately 7,000 accused genocidaires have been
tried during the pilot phase of gacaca. With the
investigative/information-gathering phase drawing to a
close, nationwide trials are scheduled to begin in May,
after adoption of pending amendments to the law on gacaca.
As we have reported, post recognizes that there are flaws in
the gacaca system, which the GOR has readily acknowledged
and is working to improve. Post will closely monitor the
process as trials get under way, and will urge full respect
for human and civil rights for the accused.

Arietti