International Justice

CJ354 Endicott College

Defining ‘Traditional’

Last class when we discussed the role of traditional justice in the cases of Rwanda and Northern Uganda, it seemed that one of the main differences was how closely Northern Uganda’s implementation resembled the ‘traditional’ model compared to gacaca courts.  Particularly that ‘traditional’ gacaca courts did not address killings and were used primarily for land and property disputes.  I found it interesting reading the Huyse report when he/she states:

“The old Gacaca was mostly used for minor offences, although apparently it could also be used for cases of manslaughter. The arrival of colonialism may have had a modifying influence on the functioning of the Gacaca in that regard, by prohibiting its use for serious crimes (44).”

Evaluating how “true” the official gacaca resembled traditional gacaca is difficult because the traditional gacaca courts evolved over time.  As with any institution, it continually transformed and adapted according to political and social pressures.  She also states that after Rwanda received its independence in 1962, the “gacaca gradually evolved into an institution associated with state power as local authorities were supervising (or taking the role of) local judges (34).”

Thus, killings and state actors had been present to some degree, at some point in time, in pre-genocide gacaca courts.  Undoubtedly, there were many flaws in the implementation and execution of the official gacaca courts, but it seems that the legitimacy of traditional justice should not be determined by how closely it resembles previous institutions, but rather, how effective it can be at achieving its goals at the local level, given the current institutions and social climate.

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2 responses to “Defining ‘Traditional’

  1. Brian Wilkinson December 3, 2012 at 2:35 pm

    You’re right in saying traditional justice should be judged by how it succeeds at the local level – in the case of gacaca, however, that success seems to be minimal. While the state clearly has been taking over control of traditional gacaca courts since 1962, and the scope of crimes judged by the courts have been expanding, the gacaca courts in post-Genocide Rwanda are inherently flawed. The expansion of state control has prevented the courts from hearing complaints of RPF abuses, leaving thousands of victims unable to have their complaints addressed. The courts are also highly focused on crimes of genocide, often at the expense of sexual violence, leaving those victims also without justice.

    I think the most important part of the move from traditional to modern gacaca is one that hasn’t been mentioned – the role of the community deciding to come together to deal with a crime that had been committed. Rather than a recognition of a local issue, the state forces the courts on local communities as a means of rapidly trying those implicated in abuses, with little view to reconciliation and accountability. While the court is focused on truth telling in exchange for plea bargains, there are few safeguards in place to ensure the whole, honest truth is told. With reduced sentences available for those making a confession (which may not be wholly truthful), victims may feel marginalized by the process, and the courts may actually be setting society back.

  2. dpu26 December 4, 2012 at 10:07 pm

    Honestly, I think “traditional” is just a bad terminology to to label these local justice efforts. In the same article, Huyse devotes a whole section to the problem in using the word “traditional.” The fact of the matter is, the “original processes,” by which I refer to the processes in regions of Africa before contact with Europeans, have evolved or been altered during the traumatic periods of colonization, civil war or genocide. Strictly speaking, none of these practices are “traditional.” However, the problem with the usage of this word lies in our inability to find a better alternative. Huyse tries and rejects “customary,” “informal,” and “non-state” as possible alternatives.

    Huyse writes that these uncertainties point to a crucial aspect of traditional instruments today, that “they are hybrids and move back and forth between their origin and capture by the state.”

    Although we use the word “traditional: then, we should keep in mind that the processes we refer to have undergone significant changes and some are in a state of flux even today.

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