Remediation in Rwanda. Kristin Conner Doughty
U.S. dollars). Unable to pay, Beata had agreed to farm for Joselyne, and she spent one afternoon fetching water and tilling Joselyne’s garden. Beata did not go again, claiming it was too much hardship after her child fell ill, especially since her husband was doing twice-weekly community service work as part of his gacaca sentence. Joselyne felt the debt had not been paid and filed a case with the comite y’abunzi. The abunzi had summoned Beata repeatedly before she finally complied. During the case discussion, the abunzi concluded that because Beata had already acknowledged guilt in Joselyne’s defamation accusation, the issue at stake was the unpaid fine.
The president of the mediators proposed that Beata should simply pay the fine imposed by the women’s committee. Beata agreed. Joselyne repeatedly rejected this solution. She complained it was unfair that Beata had been so insulting to her, and then had shown more contempt by repeatedly refusing to pay and most recently by not responding to the abunzi summons, which had wasted Joselyne’s time and prevented her from farming. She wanted Beata to have to pay more than the original fine. Joselyne asserted stridently, “I do not want to forgive Beata, I want you to punish her.” The abunzi who were hearing the case responded by explaining that their job was not to punish but to mediate and reconcile. They spent more than an hour reasoning with Joselyne, emphasizing a range of compromise solutions aimed at avoiding escalation. One mediator tried to convince Joselyne of the benefits of Beata’s willingness to farm for her. Another likened Joselyne to a parent and Beata to an errant child who should be forgiven. This case hearing concluded not with a performance of repentance and reintegration as in Alphonse’s situation, but rather with the disputants walking purposively in opposite directions, deliberately avoiding each other over the coming weeks.
I encountered law-based mediation in a third forum located a few hours’ walk away, this one a legal aid clinic run by the Faculty of Law of the National University of Rwanda. The clinic’s staff members, who were university lecturers and law students, provided pro bono legal advice to all clients who came to them, with cases ranging from divorce or land disputes to employment concerns or insurance claims. I was initially drawn to the clinic by an interest in exploring another legal context that addressed quotidian disputes, though one based in universal human rights and Western-style law rather than the alleged customary law focus at the heart of gacaca and comite y’abunzi. Yet I was struck to find that in the months I spent there, the majority of clients who came to the clinic requesting help with filing a case or defending themselves against a claim ended up participating in mediation. The clinic’s staff members were explicit that mediation was at the core of their approach. As the head of the clinic indicated in a presentation to his funders in 2008, “Very often clients are advised about the option of mediation,” and “then it is the privilege of the legal clinic to reestablish the broken social fabric.” The clinic was not a formal government institution, yet its link to the national university conveyed proximity to state power and punishment that, as the director explained to me, “reminds them [disputants] of what they are required to do by the law.”8
In a typical example, a few weeks after Alphonse’s trial, in January 2008, I entered the legal aid office, located in a small room in a single-story concrete building on the university campus. I pulled up a wooden chair around a low coffee table to join a staff member while he spoke with three clients—a man who had been fired from work as a night guard and the two nuns at the convent where he had worked. The man had come to the clinic the week before seeking help filing a case against the convent for several months of back pay, but instead the clinic staff began with mediation. The nuns explained that they had fired the man because he had allegedly stolen several blankets. Over several hours of discussion, the clinic staff member reminded the nuns of the man’s reliable work, and of his ongoing obligations to his family, while reminding the client of the benevolence the nuns were showing him by not reporting him to the authorities. The nuns agreed to pay the man two months’ wages, and the parties all expressed satisfaction with the result, grateful that they had not had to bring in the police.
How do we understand this focus on mediation and restoring relationships across such a range of legal forums and types of disputes in contemporary Rwanda? What happens when efforts at reconciliation are embedded in legal forums, thus combining pursuit of unity between disputants with punishment, and how do such efforts shape the conditions under which people rebuild their social lives? How do people follow and adapt the guiding rules of legal mediation, and what kinds of collective belonging result? What is at stake in participants’ contestation of the terms of unity? These are the questions that this book explores.
In this introduction and the book overall, I make a series of interrelated arguments that allow us to examine how and why an increasingly authoritarian state emphasized harmony and law-based mediation as a mode of power and tool of governance. I suggest we should consider these three legal forums within one analytic frame as linked by their mediation practice. Doing so captures how people experienced the exceptionalism of postgenocide justice as inextricably linked to the more mundane disputes of daily life. I further argue we should see these forums as what Laura Nader has termed “harmony legal models” (Nader 2002a) in order to identify how the forums served as techniques of state-backed community building, a form of what Nikolas Rose, building on Foucault (1982; 1991), has called “government through community” (Rose 1999:176). Analyzing these harmony models as governmentality sheds light on their coercive dimensions, and thus illustrates the dark side of harmony that is often erased by benign cultural justifications for unity. Gacaca courts, comite y’abunzi, and even the legal aid clinic could serve as spaces in which state power coerced, silenced, or pacified people through exhortations to submerge individual desires and rights in lieu of the collective good, defined in a particular way.
Yet, attending only to coercive dimensions of mediation across these diverse forums risks flattening and mischaracterizing dynamics of power in postgenocide Rwanda. I suggest that because these forums were deeply contextualized, they were relevant to people and varied in how they operated. Attending to the contested conversations within these forums allows us to analyze how people negotiated the micropolitics of reconciliation within law-based mediation as part of their efforts to reconstruct moral orders. Further, attention to the conversations themselves draws attention to the ways power and instrumentality operate at individual, interpersonal, and localized levels, in a context shaped by the macro-level global and national reconciliation agendas. What resulted was not the creation of idealistic state versions of national belonging, nor simply coercive silencing, but rather a space in which people contested the terms of moral community, actively debating what obligations they had to one another, and what it meant to belong.
Embedding Reconciliation in Law: Harmony Legal Models
Rwanda’s gacaca, comite y’abunzi, and the legal aid clinic were united by a common undergirding philosophy that, whenever possible, disputes should be solved through compromise and reconciliation with the help of a third party. They were designed to bring participants together as joint problem solvers to find mutually agreed solutions, rather than one side winning and the other side losing. This approach posited that by reasoning with one another, understanding the other side’s position, and making sacrifices, people would come to more desirable and sustainable solutions than if they went to regular adversarial courts, which imposed top-down solutions.
Mediation and reconciliation are similar ideas, as I use them here, expressed in the Kinyarwanda word kunga, or its reflexive form, kwiyunga. Kwiyunga is the root of the word abunzi, which is translated into English as mediators; comite y’abunzi are mediation committees. Similarly, kwiyunga is at the root of the word ubwiyunge, which is translated into English as reconciliation. For example, the government’s Komisiyo y’Igihugu y’Ubumwe n’Ubwiyunge is translated as the National Unity and Reconciliation (Ubwiyunge) Commission. These concepts were used in connection with each other and often interchangeably, reflecting the broader ethos of social harmony in the reconciliation discourse. I suggest that in routing people’s disputes through grassroots mediation, the Rwandan government intended not merely for mediation to serve as a dispute resolution technique, but rather for the principles and practices to stand in for reconciliation (ubwiyunge) and the national unity (ubumwe) on which the new Rwanda was ostensibly based.
I argue that we should consider these forums as harmony legal models. Nader defines harmony