Between 1994 and the year 2003, the National Courts in Rwanda tried over 5,000 genocide cases and sentenced over 698 people to death. It is a sentence that sits well with many survivors who see the death penalty as the ultimate justice for the crimes perpetrated against them and their families.
But the sentence raises fundamental moral questions. Has it been a fair sentence in all the cases it has been applied? And does it foster reconciliation or not?
There are also some tricky legal issues too. For example most defendants tried immediately after the genocide were convicted under homicide laws. Following the enactment of the genocide act twenty two were executed in public across Rwanda in April 1998 prompting an international outcry.
Rwanda ‘s laws were duly modified to offer more lenient sentences to suspects who confessed to genocide. The introduction of Gacaca – a quasi traditional court system – reinforced that approach. But these moves have sparked a fresh controversy, with some seeing them as forms of amnesty.
Abraham Ngulinzira is one of those caught in between. He was a farmer, and admits to participating in the killings. “I was walking and I met people who were marching someone ahead of them, they ordered me to kill him, and to be frank I killed him and then continued on my way. I accepted that early on,” he says.
Ngulinzira was tried in 1998 and sentenced to death. This despite the fact the Prosecution team urged the judges to consider his confession. Ironically, if he was tried today, Ngulinzira would be considered a category 2 genocide suspect. That means, among other things, that he would not face the death sentence.
Fellow prisoner John Uwonkunda a former assistant mayor was tried for inciting and instructing people to kill. He is a Category I suspect, which means he is charged with planning and orchestrating killings. In his defense he insists that he never killed anyone.
“I shot at them, later I came to know that I had not killed anyone,” Uwonkunda insists.
Fabien Bayingana was also sentenced to death. “We killed a certain Habyarimana, and four children of a man called Canissius, as well as a young girl that I knew.”
So, according to the law that was working at the time of their trial, Abraham Ngulinzira, John Uwonkunda and Fabien Bayingana all deserve the death sentence. But the law has changed, and so has the emphasis shifted from retributive justice to reconciliation. What will this eventually mean for the country?
Alison Des Forges works as an Advisor to Human Rights Watch. She says that for reconciliation to take root in Rwanda, genocide survivors must feel and see that justice has been done. But she also believes that the death penalty is not the only way.
“I can understand why people who have lost family members or who have been harmed themselves physically could well feel that nothing short of the death penalty would be satisfactory. Still other forms of punishment can in fact be very severe and someone who has to face his life in prison may in fact be better punished than someone who was simply executed”, Des Forges points out.
The current sentencing regime leaves offenders like Ngulinzira outside Rwanda ‘s reconciliation process even when they are willing to take part. “I accepted my guilt very early on. I even went to the chief prosecutor’s office and confessed, after a few days they called me back and they told me that my file has already been taken to the courts, and advised me to plead guilty before the court. When I went to court I accepted my responsibility even before the trial began the prosecutor accepted my confession, but the court refused to look into it,” he laments.
His sentence has had a drastic impact on him and his family. “I had only been in jail two years and my wife decided to hit the road. They told me she married someone else and I took it like that. It is such a long time since I was visited, it is so long! No one visits me,” he says with a sigh.
Ngulinzira’s wife, Vedianne Mukakabibi, lives in the Birambo area of Kigali Rural. She has two children both less than five years old and a third on the way. When asked what she thinks of her husband’s sentence it turns out that nobody told her it was the death penalty. “ I really didn’t know. I hope they forgive him. He won’t do it again,” she says.
She says she broke off contact with her husband, because of she no longer had the means to visit. “I used to visit him but I stopped because I have nothing to bring for him. I have nothing at all. Life is very bad, when I get malaria I just sleep, I do not have any drugs. Nothing to eat, no clothes…”
Like Abraham, John Uwonkunda says he confessed to his crimes and hoped to have his death sentence reduced. But many survivors wonder about such confessions. Alphonse Rwambari is from Gikomero, where John Uwonkunda was assistant mayor. Rwambari doubts his sincerity. “It is clear that he realized they were going to give him a heavy sentence so he decided to confess, in my view someone ought to confess the crimes before he knows that he will get a stiff sentence.”
Francois Xavier Gashumba appeared in court with Uwonkunda on several occasions. Gashumba is one of the prisoners whose cases were evaluated much later. He was put in Category 2 and released last year to await Gacaca proceedings.
He finds Uwonkunda’s alleged confession surprising, given the attitude he displayed before the court. “He denied the charges against him. He said he didn’t do any of those things. If he accepted his responsibilities he must have done it after we left because before that he used to say he did nothing wrong,” Gashumba recalls.
Celestin Kabega was in the same prison as the former assistant mayor. He, too, remembers a more defiant Uwonkunda. “Before court he pleaded not guilty and said the charges against him were false. The prosecutor charged him with leading attacks but he denied the charges,” he confirms.
It is such contradictions that leave many like Rwambari wonders about the long-term impact of people changing their stories and sometimes going free as a result. “It is obvious that some of those people are not making a heartfelt confession and are only doing so to save their own skin. I do not know if when such people come to live with the families of those they killed whether that situation will work and whether such a person has truly repented,” Rwambari muses.
There are inevitably, perhaps, more questions than answers here. For example, if some confessions are not seen as credible, is Rwanda ‘s reconciliation process being undermined by a legal system which rewards them, nevertheless? And if so, would the death penalty be a fair alternative, in such cases?
Benoit Kaboyi in charge of justice issues in IBUKA, the association of survivors. He sees the death penalty as a strong deterrent. “For me when I think about the death penalty I do not think of it in terms of unity and reconciliation. I look at the fact that these crimes were committed and there should be a corresponding punishment. The death penalty is important because it teaches the perpetrator and society in general that people who commit such heinous crimes will be punished in the same manner,” he asserts.
Rwanda’s prosecutor general Jean De Dieu Mucyo says that while there might be a need to look at the law again, any decision on whether or not to maintain the death sentences would have to take in the diverse views of Rwandans and international observers. “The death penalty is there in our law that has not changed. That is a big debate that is relevant to all Rwandans, it is not something that affects only one part of the society, what we could probably ask is for a forum to be set up so that people can express their views about it,” he says.
Andrew Hakizimana is a former neighbor of Abraham Ngulinzira. He believes reconciliation might be easier if Ngulinzira and others convicted were allowed out of jail to meet local people, and make a public apology. “It would be better if he would be released and he came and confessed his crime to the population where he committed the crimes,”
At present, however, prisoners tried and sentenced in the earlier years or those currently in category I are not allowed out of jail to participate in Gacaca, or to have any contact with the wider public. So how can they play a positive role, or any role, in peace and reconciliation?
“What we ask of those accused of crimes, whether in prison or under provisional release is that they confess and ask for forgiveness. For those in category I they cannot be released, but if they confess before trial, the sentence can be reduced, for example from death penalty to life in prison. Although Gacaca cannot preside over their crimes the testimony they give can help Gacaca and inversely what people say in Gacaca helps us prosecute those in Category I, the only problem of course is that some people confess lower crimes and are released and then you find they had kept quiet about something otherwise their confessions are useful for the Gacaca courts,” says Mucyo, Rwanda’s prosecutor general.
Echoing this theme, Francois Xavier Gashumba says people who are not sincere, especially in public, cannot possibly assist the reconciliation process. “What would they come to tell Gacaca yet they denied the charges when they were being tried? But if they accept responsibility, testify publicly and act as examples they can help, otherwise if they do not accept what they did how can that help?” he asks.
But if condemned prisoners accept they did wrong, will their subsequent execution help Rwanda ? They think not. “We are sorry for what we did. But we want punishments that are reduced. There should be mercy alongside punishments; we think this is within the government’s program ,” says Uwonkunda.
Benoit Kabuye doubts the sincerity of prisoners who confess and then demand to be forgiven. He says they have no right to easy absolution . “ Forgiveness should not be based on blackmail. There is a way to ask for and receive forgiveness. Forgiveness should not exonerate people from just punishment. Forgiveness is one thing, punishment is another, one can be sentenced to two years, to compensate the victim as per the law, and in the very same way, he can be sentenced to death,” Kaboyi insists.
Indeed some survivors say the government program of reducing sentences does not always consider the interests and opinions of local communities and this may not foster reconciliation at all. “For us we consider that there is nothing we can change about the situation…. (the detainee) has accepted his crimes and has confessed before the court and asked forgiveness from the state apparatus. It’s okay. For us all we see are people being released, they came here, they have been forgiven elsewhere, and we have no role or say in that, Rwambari says.
But there is logic to the law, at least according to the prosecutor general. “The way I understand it is that not all people will accept responsibility for crimes at the same time. I might think about what I have done and what I have been taught and confess my crimes today another person might take his time to reflect and confess later that is why we have different sentences depending on when someone confessed, whether they confessed before being charged of any wrong doing, whether they confessed when they were confronted with the charges, or whether they have refused to confess to any crimes,” he explains.
For now at least, those sentences will continue to include the death penalty. Some prisoners though, have benefited from the alternatives that have developed over time. Francois Xavier, for example, says confession has brought much more than freedom. It has brought peace of mind. “After asking and receiving forgiveness from those that I hurt, the heaviness in my heart lifted, before, I felt inhuman, dead inside, because I had done terrible things but when they allowed us to ask for forgiveness, I did and I felt completely relieved, today I am taken just like any other villager with all of his rights.”
Justice after genocide can never be an easy task. Those tried under the national courts, or facing death sentences, may feel they no longer have a role in the Rwandan society, no matter what they are told or asked to do. Some survivors may feel that reducing sentences or releasing prisoners is amnesty, not justice.
But perhaps if Rwandans can meet and talk together about the genocide, about justice, about peace – among family, with friends and neighbors in their community, or even in a national forum as suggested by the Chief Prosecutor, then they might just find a way to move forward together.