ARTICLES

The promises of new constitutional engineering in post-genocide Rwanda

Takele Soboka Bulto

PhD Candidate, Melbourne Law School, University of Melbourne, Australia

SUMMARY

Conflict of a magnitude that happened in Rwanda owes its causes to a multitude of factors, and ultimately require multi-dimensional responses, each of which plays a role in addressing the underlying roots of the genocide. A legal response to the problem, the Constitution of Rwanda, was adopted by a referendum in May 2003. This contribution is an attempt to gauge the role of the Constitution in reordering Rwandan society along a new social equilibrium. Seen against the backdrop of the genocide that decimated a tenth of the country's population, this contribution focuses on the identification of the causes of the genocide and the evaluation of the substantive, procedural and institutional innovations of the Constitution in its attempt to build a new path for post-genocide Rwanda.

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* LLB (Addis Ababa), LLM (Human Rights and Democratisation in Africa) (Pretoria), MA (Addis Ababa); t.bulto@pgrad.unimelb.edu.au; tsoboka@yahoo.com. This work has benefited from the illuminating comments of Alice Urusaro Karekezi of the Centre for Conflict Management (National University of Rwanda), Dr Ebriama Sall (CODESRIA), Dr Kayoede Fayemi and the participants of the Workshop on Citizenship Project organised at the National University of Rwanda (Butare) in March 2005, where the earlier version of this paper was presented. I remain indebted to them all.
1 BD Jones Peacemaking in Rwanda: The dynamics of failure (2001) 1.         [ Links ]
2 Human Rights Watch 'The genocide' http://www.hrw.org/reports/1999/rwanda/Geno1-3-02.htm#P22_7285 (accessed 12 March 2008).         [ Links ]
3 J Pottier Re-imaging Rwanda (2002) 32.         [ Links ]
4 Bill Clinton, quoted in Jones (n 1 above) 32.
5 Jones (n 1 above) 1.
6 See 'The psychocultural roots of genocide' http://www.questia.com/PM.qst?Action= openPageViewer&docId=96461856 (accessed 12 March 2008).         [ Links ] It is important to note that figures about the killing, of course, do not even take into account the extent of the non-deadly violence: rape, maiming, and other forms of violence that were the order of the day. Thus it is impossible to determine the number of people who died as indirect results of the genocide through disease, malnutrition, or depression.
7 See Jones (n 1 above) 1. Approximately three-fourths of the Rwandan Tutsi population had been murdered. Ironically, however, the ratio of Hutu to Tutsi has not changed substantially since before the genocide. Following the en masse return of hundreds of thousands of Tutsi refugees who had been living for decades, and sometimes for generations, in Uganda and elsewhere, the Tutsi population continues to comprise approximately 15% of the population. See E Daly 'Between punitive and reconstructive justice: The gacaca courts in Rwanda' (2002) 34 International Law and Politics 355.         [ Links ]
8 The RPF was formed in 1987 by the Tutsi refugee diaspora in Uganda. The first Tutsi refugees fled to Uganda to escape ethnic cleansing committed by extremist Hutus during the first genocide of 1959. The RPF ended the 1994 genocide by defeating the civilian and military authorities responsible for the killing campaign. See Human Rights Watch 'The Rwandan Patriotic Front' http://www.hrw.org/reports/1999/rwanda/Geno15-8-03.htm (accessed 17 May 2008).         [ Links ]
9 Pottier (n 3 above) 32.
10 See eg DN Smith 'The psychocultural roots of genocide: Legitimacy and crisis in Rwanda' (1998) 53(7) The American Psychologist 743-746.         [ Links ]
11 See Official Gazette of the Republic of Rwanda, Year 42, Special Issue 4, June 2003. See also http://www.chr.up.ac.za/hr_docs/constitutions/ docs/RwandaC(rev).doc (accessed 31 March 2008).         [ Links ]
12 HW Jeong Peace and conflict studies: An introduction (2000) 70.         [ Links ]
13 SG Amoo The challenge of ethnicity and conflicts in Africa: The need for a new paradigm (1997) 11.         [ Links ]
14 Amoo (n 13 above) 13.
15 Pottier (n 3 above) 11.
16 Pottier (n 3 above) 20.
17 ICTR judgment The Prosecutor vlean-Paul Akayesu, Case No ICTR-96-4-T, para 79.         [ Links ]
18 Africa Direct Conference http://homepages.udayton.edu/~uwiringi/ genocide/understanding.html#turmoil (accessed 21 December 2007).         [ Links ]
19Akayesu case (n 17 above) para 79.
20 Pottier (n 3 above) 10.
21 Africa Direct (n 18 above) 23.
22 G Prunier The Rwanda crisis 1959-1994: History of a genocide (1995) 4.         [ Links ]
23Akayesu case (n 17 above) para 90.
24 Amoo (n 13 above,) 10.
25 Africa Direct (n 18 above) 23.
26 As above.
27 As above.
28 As above.
29 Peace Agreement between the government of the Republic of Rwanda and the Rwandese Patriotic Front, signed at Arusha, Tanzania on 4 August 1993.         [ Links ]
30 Africa Direct (n 18 above).
31Akayesu case (n 17 above) para 94.
32 As above.
33 As above.
34 As above.
35 Human Rights Watch http://www.hrw.org/reports/1999/rwanda/ (accessed 12 March 2008)         [ Links ]
36 As above.
37 I Filatova 'Democracy versus state: The African dilemma' in H Solomon & I Liebenberg (eds) The consolidation of democracy in Africa: A view from the south (2000) 15.         [ Links ]
38 Jones (n 1 above) 40.
39 As above.
40 As above.
41 As above.
42 Amended indictment of The Prosecutor v Hassen Ngeze, Case No ICTR-97-27 para 6.10.
43 'The United Nations and Rwanda 1993-1996' (1996) 8 United Nations Bluebook Series 10.         [ Links ]
44 As above.
45 S Power 'Bystanders to genocide: Why the United States let the Rwandan tragedy happen' (September 2001) Atlantic Monthly 88-89.         [ Links ]
46 S Gloppen 'Reconciliation and démocratisation: Outlining the research field' http://www.cmi.no (accessed 11 March 2008).         [ Links ]
47 E Bradley 'In search for justice - A Truth and Reconciliation Commission for Rwanda' (1998) 7 Journal of International Law and Practice 129.         [ Links ]
48 See Preamble.
49 E Zorbas 'Reconciliation in the post-genocide Rwanda' (2004) 1 African Journal of Legal Studies 43.         [ Links ]
50 As above.
51 See UNDP Electoral systems and processes: Practice note (2003) 9-10.         [ Links ]
52 DL Horowitz Ethnic groups in conflict (1985) 628.         [ Links ]
53 Amoo (n 13 above) 19.
54 See generally JD Barkan 'Rethinking the applicability of proportional representation for Africa' in TD Sisk & A Reynolds (eds) Elections and conflict management in Africa (1998);         [ Links ] R Vengroff 'Governance and the transition to democracy: Political parties an the party system in Mali' (1993) 31 Journal of Modern African Studies 541.         [ Links ]
55 Jeong (n 12 above) 237.
56 Art 55.
57 As above.
58 Art 116.
59 Art 77.
60 As above.
61 Under art 57 of the Constitution, political organisations which are duly registered are entitled to grants by the state.
62 Art 58.
63 Art 140.
64 As above.
65 Akayesu case (n 17 above) para 93.
66 A Wing & M Johnson 'The promise of a post-genocide Constitution: Healing Rwandan spirit injuries' (2002) 7 Michigan Journal of Race and Law 465.         [ Links ]
67 See 'Rights of minorities, disadvantaged, women and children' in Conference on Constitution Development, Kibuye-Rwanda (24 August 2001) (comments of Claudine Gasarabwe of Rwanda) (unpublished) 80-83.         [ Links ]
68 Art 11.
69 As above.
70 'Expression' is a wider concept than 'speech' and includes, but is not limited to, activities such as displaying posters, painting and sculpting, dancing and the publication of photographs.
71 Under art 19 of the International Covenant on Civil and Political Rights (CCPR), to which Rwanda is a party, freedom of expression can be limited for purposes of ensuring 'respect of the rights or reputations of others' and for 'the protection of national security or of public order (ordre public), or of public health or morals'. See CCPR, GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) 52, UN Doc A/6316 (1966), 999 UNTS 171, entered into force 23 March 1976.
72 n 71 above, 144.
73 Eg, in 1995, the Burundian radio station, Radio Democracy, coupled with extremist newspapers, was to blame for the bloodbath that claimed the lives of not less than 156 000 people. See Article 19 Broadcasting genocide censorship, propaganda and state-sponsored violence in Rwanda 1990-1994 (1996) 175.         [ Links ]
74 GM Khadiagala 'Country paper: Governance in post-conflict situations: The case of Rwanda' Bergen Seminar Series, Bergen, Norway, May 2004 13.         [ Links ]
75 As above.
76 So, too, under art 20 of CCPR, '[a]ny propaganda for war shall be prohibited by law ... advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law'.
77 L Louw 'Hate speech in Africa: Formulating an appropriate legal response for a racially and ethnically divided continent with specific reference to South Africa and Rwanda' in C Heyns (ed) International yearbook of regional human rights Master's programmes (2001) 186.
78 Louw (n 77 above) 187.
79 National Unity and Reconciliation Commission Opinion survey on participation in gacaca and national reconciliation (2003) Annex 2 5.
80 Art 25.
81 Art 30.
82 National Unity and Reconciliation Commission Report on the evaluation of national unity and reconciliation (2002) 21.
83 Khadiagala (n 74 above) 1.
84 See art 180.
85 Art 181.
86 M Haile 'The new Ethiopian Constitution: Its impact on unity, human rights and development' (1996) 20 Suffolk Transnational Law Journal 3.
87 C Willis Essays on modern Ethiopian constitutionalism: Lectures to young lawyers (1997) 3 (unpublished).
88 Willis (n 87 above) 30.
89 See Governance interventions in post-war situations: Lessons learned Bergen Seminar Series, Bergen, Norway 5-7 May 2004 4 (unpublished).
90 S Fisher et al Working with conflicts: Skills and strategies for action (2000) 125.
91 Fisher et al (n 90 above) 131.
92 As above.
93 See generally DA Crocker 'Truth commissions, transitional justice and civil society' in RI Rotberg & DF Thompson (eds) Truth v justice: The morality of truth commissions (2000); H Adelman 'Rule-based reconciliation' in A Suhrke et al (eds) Roads to reconciliation (2004); A Honwana 'Children of war: War cleansing in Mozambique and Angola' in Suhrke et al, above.
94 Gloppen (n 46 above) 52.
95 Fisher et al (n 90 above) 134.
96 See UNDP Electoral systems and processes: Practice note October 2003, 14.
97 As above. There is a reason to declare that '[t]hose who forget the past are doomed to repeat it' (emblazoned at the entrance to the museum in the former Nazi concentration camp in Dachau, Germany).
98 Archbishop Desmond Tutu's statement is instructive in this regard: 'Confession, forgiveness and reconciliation in the lives of nations are not just airy-fairy religious and spiritual things, nebulous and unrealistic. They are the stuff of practical politics.' From the final report of the Truth and Reconciliation Commission of South Africa (1998) as quoted in the report 135.
99 See Daly (n 7 above) 375.
100 See K Hornbergera 'Rwandan gacaca courts in crisis: Is there a case for judicial review?' (2007) 3 Africa Policy Journal 9.
101 Hornbergera (n 100 above) 11. A case has been made that 'in the post-genocide context the gacaca courts were the best opportunity for Rwanda to attain some semblance of closure'. See Hornbergera (n 100 above) 1.
102 The words of a witness at the Port Elizabeth (South Africa) human rights violation hearings touch the heart: 'Thank you, Bishop [Desmond Tutu], but I am sorry, there is something else that I would like to ask. Do not take me wrong, my Bishop, you cannot make peace with somebody who does not come to you and tell you what he has done. We will have peace only when somebody comes to you and says: "This is what I did. I did this and this and that and that." If they do not come, if we do not know who they are, we will not be able to. But now I will forgive who has. That is the whole truth, Sir. We take it that the people who are listening and the people who are coming to the [Truth and Reconciliation] Commission will be touched as well. Their conscience will tell them that if they want forgiveness they should come and expose themselves so that they can also get the healing that the victims are getting' (quoted in Fisher et al (n 90 above) 135).