Truth and reconciliation in South Africa vs Gacaca Courts in Rwanda: transitional justice mechanisms, and the need for reparations.

Abstract

The year 1994 will forever be earmarked as the most eventful year in the history books of both South Africa and Rwanda. For South Africa, the year represented a long-awaited transition from an apartheid and segregationist government to one of democracy. This placed an obligation on the government to restore national unity, to hold accountable the perpetrators of apartheid and to repair the victims and survivors of apartheid. The creation of the Truth and Reconciliation Commission was situated primarily on the fulfilment of these aims. More than two decades ago, while South Africa was moving away from conflict, in April of 1994. Also, in April 1994, Rwanda was emerging into an ethnically fuelled genocide in an attempt to hold the perpetrators accountable for their actions, it became apparent that the existing judicial system had been debilitated and would be incapable of handling the amount of cases before it. This led to the creation of Gacaca Courts which were tasked with the investigation and prosecution of crimes committed between 1 October 1990 and 31 December 1994. The topic of discussion was prompted by the visible failure of both governments to cater for the needs of its citizens and to address past injustices brought about as a result of the mass human rights violations. Moreover, the overwhelming lack of literature on the topic of reparations for African countries post conflict, prompted the need to look at transitional justice mechanisms and to decipher to what extent they deliver justice and peace practically, as opposed to theoretical ideals. Further, the need to call out both governments for the controversial, yet accurate claim that without the payment of reparations (which comes in many forms) justice has not been done and both governments have failed its citizens for over two decades. Finally, this topic was prompted by the effort to not only fill the gap in the understanding of reparations in Africa and within transitional justice but also an attempt to influence legislation impacted in this regard. This dissertation will look at the ways in which comparison can be made between the South African Truth and Reconciliation Commission following Apartheid and the Gacaca Courts following the Rwandan Genocide with regard to the restorative approaches employed in both cases as well how sexual violence was handled respectively. It explores the effectiveness of Gacaca Courts, the positive changes it’s made possible for the Rwandan citizens as well as its short comings. It also explores the effectiveness of the TRC as well as its shortcomings and makes a comparison between SA, Namibia and Zimbabwe on the land question. In addition to this, it will look at the practical application of reparations in the country specific context, in chapters 2 (South Africa) and 3 (Rwanda) respectively. Moreover, this paper will argue that without the reparations aspect of the countries proposals being fulfilled in its entirety, the process to justice and peace is incomplete and justice cannot be said to be done. It will also look at the forms that reparations can take as well as how that has been applied, and ought to be applied in the specific countries. Recommendations for each country are made and explained in detail in chapter 4. Two recommendations for South Africa are made in this dissertation. It is recommended that the registration period for individual reparations for the survivors of apartheid be re-opened, further, it is recommended that government deals with the land reform issues on an urgent basis. The successes of Gacaca Courts are commendable; however, the failures have been detrimental to the lives and health of the victims of genocide. It is in this breath that three recommendations are made for a more effective and far reaching operation. It is recommended that the Rwandan Patriotic Front be held accountable for the crimes committed during and after the Genocide and not be exempted from law. Further, it is recommended that government establish a compensation fund for victims and finally, it is recommended that crimes for sexual violence and sexual reproduction get special attention and crime specific reparations.