Remediation in Rwanda. Kristin Conner Doughty
Debating whether Rwanda’s postgenocide legal institutions are “customary” can disguise the degree of state involvement in so-called informal or popular mediation in the past and the present, and it can hide historical and contemporary power imbalances and coercion. For decades we have known that we cannot take the ethnographic record of African customary law at face value, given how the focus on compromise within it reflects primarily a “Durkheimian emphasis on harmony of interests and shared goals” (Starr and Yngvesson 1975:559). Even seemingly consensus-based customary practices contained hierarchy and coercion (Colson 1974; Moore 1986). Further, customary practices and institutions in Rwanda and elsewhere in sub-Saharan Africa changed significantly during the colonial period and after independence, specifically through increasing state control (as I describe in more detail in Chapter 2). Their revival in the twenty-first century needs to be understood not as a romanticized local movement but as an “invented tradition” (Hobsbawm and Ranger 1983) that served present state needs.17 A rich body of legal anthropology has shown how so-called popular or informal institutions that use mediation are typically tied up with, not separate from, state law and even expand state control.18 I agree with Lars Waldorf (2006) that there seems limited utility in clinging to terms like popular and informal in Rwanda, where the state is deeply implicated in gacaca in particular and the courts may in fact be deeply unpopular.19
Further, attention primarily to measuring degree of cultural relevance can mask the way these forums are bound up with broader-reaching global trends. Rwanda’s mediation-based legal forums were extensions of the truth commission model, popular worldwide since the 1980s, which typically foregrounds victim narratives and eschews punishment in an effort to “heal individuals and society after the trauma of mass atrocity” (Minow 1998:57).20 Government billboards across Rwanda in 2004 and 2005 publicizing the launch of the gacaca process announced Ukuri kurakiza, “the truth is healing.” Rwanda’s emphasis on mediation through gacaca, comite y’abunzi, and the legal aid clinic reflected broader international trends in transitional justice, including a move away from exclusively using international criminal courts, a shift to national ownership of legal processes, and a shift toward valorizing cultural solutions (see Chapter 2).
Looking at Rwanda’s forums in comparative perspective with other harmony models underscores that though they often derive from local practices, harmony models are simultaneously “part of systems of control that have diffused across the world along with colonialism, Christianity, and other macroscale systems of cultural control such as psychotherapy” (Nader 2002a:32). The imbrications of Christianity with mediation in Rwanda are pronounced today. Rwanda has been predominantly Christian for more than a century, due to the missionary influence during colonial rule (Longman 2010a). Postgenocide Rwanda saw a resurgence in transnational forms of Christianity, particularly evangelical churches brought in from East and Central Africa by returning diaspora members, as well as by church congregants in missions from churches in Europe and the United States. Although churches were not formally involved in the legal process, Christianity served as a broader part of the sociopolitical context that reinforced mediation principles (e.g., Richters 2010). Both local pastors (some of whom served as abunzi or inyangamugayo) and international pastors advocated harmony principles within and outside courts in Rwanda.
In a notable example, beginning in 2005, President Paul Kagame enlisted the help of American evangelical Pastor Rick Warren, author of the best-selling Purpose Driven Life (2002), to collaborate in a five-year project aimed to turn Rwanda into the first “purpose-driven nation” (Morgan 2005; Van Biema 2005). In addition to meeting with government officials and visiting the hospitals his project supported, Pastor Warren—who would later go on to cement his status as a global moral leader by giving the invocation at President Barack Obama’s inauguration in 2009—held large revival meetings attended by thousands of Rwandans across the country, in which he preached about the importance of unity and forgiveness to restoring Rwanda (Musoni 2008b). Rwandan pastors regularly advocated for the mediation discourse from the pulpit, encouraging parishioners to confess and forgive, and even served as lay judges and mediators. Medical anthropologist Annemiek Richters has described mediation-like efforts in sociotherapeutic processes led by churches in northern Rwanda that similarly emphasized healing within the community (Richters 2010). Other scholars have noted this trend elsewhere. Wilson has argued that Christian notions of confession and redemptive healing were crucial to many people’s understandings of reconciliation in the South African Truth and Reconciliation Commission (Wilson 2001:109–120). Shaw (2007) and Kelsall (2005) have described how Christian elements were crucial to the Sierra Leonean TRC hearings, Abramowitz (2014) has described Christian discourses of harmony, reconciliation, and truth that accompanied the Liberian TRC; and Theidon (2012) has detailed the interrelationships between evangelical Christianity and the TRC in Peru.
Nader’s comparative examples also draw our attention suggestively to how mediation in Rwanda is linked to a third global trend: alternative dispute resolution (ADR). Harmony models, often in the form of ADR, have been a part of the package of the Americanization of law being exported around the world for decades, alongside the more retributive, adversarial dimensions of Western-style law.21 The shift to ADR involved a transition toward viewing law as healing, an approach that “transforms facts and legal rights into feelings, relationships, and community writ small” (Nader 2002a:131),22 consistent with the explicit focus on individual-level forgiveness and compromise brokered by community members in Rwanda’s grassroots legal forums. Laurel Rose (1996) has described being sent to fact-find about ADR approaches in Rwanda as early as 1994, and Nader has suggested that the World Bank, which supports programs in Rwanda, mandates the use of mediation to solve conflicts with many assisted countries.23 Many states in the United States made ADR mandatory in the mid-1990s, much as gacaca and comite y’abunzi were made obligatory in Rwanda a few years later, and as mediation in legal aid became increasingly common worldwide (see, for example, Englund 2006:145–169). Paralleling the rationalization of ADR,24 there was regular justification of Rwanda’s gacaca courts, comite y’abunzi, and legal aid clinic in terms of increasing efficiency and “unclog[ging] courtrooms” (Butamire 2010) consistent with nationwide strategic planning goals of decentralization (Ministry of Local Government 2008a, b), and I heard them framed as self-evidently better than, and in opposition to, adversarial law.
None of this is to suggest that there is no basis for claiming cultural roots of harmony in Rwanda, or that these three forums are identical to ADR. Rather, in the face of such clear interconnections between Rwanda’s postgenocide grassroots mediation-based legal forums and global trends, I want to examine what is at stake in the insistence that these forums are naturally Rwandan. Challenging the benign cultural framing of harmony legal models in Rwanda is vital, especially given the growing acknowledgment that the Rwandan government is increasingly authoritarian, manipulates identity politics, and uses law and “lawfare, the effort to conquer and control … by the coercive use of legal means” (Comaroff 2001:306) selectively as another strategy to consolidate the ruling elites’ power and suppress dissent (e.g., Chakravarty 2015; Hintjens 2008; Longman 2010b; Morrill 2006; Reyntjens 2005; Straus and Waldorf 2011).
Indeed, while the postgenocide Rwandan government claimed to promote a unified national identity that superseded ethnic divisions and officially banned ethnicity, its official history erased reference to deep structures of political economic exclusion and exploitation, and actually reinscribed division by defining citizenship categories in relation to the genocide: Hutu were génocidaires, Tutsi were victims (see Chapter 1).25 Other hierarchies of power and inequality existed across dimensions of gender, class, age, or region. Further, national unity was promoted alongside the implementation of increasingly repressive laws that proscribed ethnic labels and criminalized “divisionism,” “revisionism,” or “genocide ideology,” anything seen as “marginalizing … degrading … [or] stirring up ill feelings” (Law N.18/2008 of 23/07/2008, Article 3). These laws served to reduce political dissent, especially when coupled with ongoing detentions, and state-backed violence at home and in the neighboring Democratic Republic of Congo (Thomson 2011c:442; Waldorf 2011:49).