Countries at the Crossroads 2005 - Rwanda

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Introduction

Author

Sara Rakita is a New York-based attorney and consultant. She has lived in Rwanda and travels frequently to Africa.

The year 2004 marked the 10th anniversary of the Rwandan genocide, in which more than half a million Tutsi and moderate Hutu were slaughtered and Rwanda was devastated in just three months. Rwanda has since made enormous progress in bringing stability and development to the country. Nevertheless, the regime remains repressive, allowing very little space for independent voices.

President Paul Kagame and the Rwandan Patriotic Front (RPF)-dominated legislature were elected by a landslide in historic elections ending the country's post-genocide transitional phase in 2003. However, the elections were marred by bias and intimidation, which precluded any genuine challenge to the RPF. The legislative and judicial branches of government have not done much in the way of counterbalancing the executive. In practice, power remains concentrated in the hands of a small inner-circle of military and civilian elites known as the akazu. Critical voices in civil society and the media have been silenced.

The government states that genocide prevention is one of its main priorities. While Rwanda's Hutu, Tutsi, and Twa – all of whom share a common language and culture – have achieved a substantial measure of peaceful coexistence, ethnic divisions remain a concern. The government established a parliamentary commission to investigate what it calls a growing trend of divisionism and genocidal ideology throughout the country and has attempted to identify those responsible and stop them in their tracks. The 2001 Law on Discrimination and Sectarianism establishes stiff criminal penalties for those accused of divisionism, which is defined only in broad and vague terms,¹ opening the concept up to abuse and political manipulation. Politically motivated accusations of divisionism can carry criminal penalties and have been used to attack civil society organizations, political parties, and individuals. Accusations of divisionism or genocidal ideology are among the most effective tools for silencing critics in Rwanda.²

The justice system remains overwhelmed by the enormous backlog of detainees awaiting trial on charges that they were involved in the genocide. In an effort to speed up the process of the trials, the government established courts loosely based on gacaca (a traditional justice mechanism in which residents of a community gathered to discuss and resolve a conflict within the community) to try the bulk of genocide cases. Previously, gacaca had been used only for community-level problems, such as theft of livestock. In 2002, the government granted the new courts criminal jurisdiction over genocide cases in the hope that their participatory nature would contribute to reconciliation. However, the gacaca courts had yet to begin trials by September 2004. Transitional justice has been largely one-sided in Rwanda; gacaca will not be used to prosecute revenge killings or war crimes by the RPF. These crimes are not nearly of the same scale as crimes of genocide, yet failure to address them adequately has led to perceptions of victors' justice. Meanwhile, the country's conventional courts did not function during much of 2004, awaiting implementation of an overhaul of the system aimed at improving the professionalism of the judiciary.

The government had yet to finalize a land law and policy by September 2004. As a result, property rights remained ambiguous. Cases of citizens being arbitrarily denied their property continued. Many families still depend on plots of land too small to support them.

Rwanda has a reputation for being less corrupt than many other African countries. During the year, Rwanda took important steps to weed out corruption, but much remains to be done.

Accountability and Public Voice – 1.48

In 2003, Rwanda adopted a new constitution, held historic parliamentary and presidential elections, and swore in leaders of a new government, bringing to a close the official phase of transitional government that had lasted for nine years after the genocide. The elections, which resulted in a landslide victory for President Kagame and the RPF, were remarkable for the high voter turnout, low levels of violence, and impressive administrative efficiency. The draft constitution was approved with 93 percent support in a national referendum, Kagame won the presidency with 95 percent of the vote, and the RPF won nearly 74 percent of the votes in parliamentary elections.

While the elections were a step forward for the country in many ways, Rwanda still falls short of international standards guaranteeing people's right to participate in their governance. The environment in which the elections and electoral campaign took place was extremely restrictive and precluded opposition politicians from mounting an effective challenge. The European Union election observation mission concluded that the election laws had improved in some respects since the constitutional referendum earlier in 2003 but remained deeply flawed, that the impartiality of the National Electoral Commission was not guaranteed, and that the Supreme Court failed to exercise effective oversight.³

The elections took place in a climate fraught with fear and intimidation. Numerous supporters of opposition candidate Faustin Twagiramungu were arrested and two received death threats. Pasteur Bizimungu – a Hutu who used to belong to the RPF and was president for six years after the genocide – along with seven associates, remained in pretrial detention throughout the electoral period (see "Rule of Law"). The government failed to investigate a number of high-profile disappearances (the victims included a member of parliament, three former military officers, a businessman, and a student). Large numbers of citizens were coerced to join the RPF,⁴ and people were made to fear that electing the opposition candidate could lead to renewed violence, which, in the Rwandan context, was interpreted as a threat. Three political parties, including the largest Hutu party and two new parties, were effectively banned in the run-up to the elections.

Throughout the transition period, the RPF had strictly controlled political party activity, allowing other parties to operate only on a national level in an RPF-dominated Political Forum. Most parties endorsed the RPF prior to the elections, and only parties that endorsed Kagame in the presidential race won seats in the parliament. The forum of political parties was institutionalized in the 2003 constitution. While this forum can play an important role in fostering dialogue among political parties, it has demonstrated its potential to impose RPF-dominated consensus, rendering the multiparty system ineffective.⁵

Media gave disproportionate coverage to the RPF candidates, while some journalists were harassed for covering opposition politicians. The governmental subsidies for campaign finance provided for in the 2003 constitution were not distributed prior to the election.⁶

Despite the unfair playing field, the RPF landslide victory has largely been interpreted as a strong mandate for the ruling party. Yet, in effect, the elections resulted in even less political pluralism than existed during the transition phase.⁷

The executive, supported by a small group of military and civilian insiders known as the akazu, continues to dominate government policy. The legislature and judiciary have largely gone along with the executive's agenda and have rarely seized on opportunities to stem excessive exercise of power.

The 2003 constitution mandated establishment of a Public Service Commission to centralize the appointment and recruitment of public servants as well as civil service reform. However, legislation to establish this body had not yet been enacted by September 2004, and questions remained as to how the commission would function. Many Rwandan citizens believe that civil service positions are awarded through patronage.

Civic groups have been able to influence government policy and pending legislation to a limited degree on issues including promotion of women, the Poverty Reduction Strategy, and transitional justice. However, input is not always taken into account, and some policy analysts have observed that the government often knows what it wants to do and solicits outside views only as window-dressing.

Rwandan nongovernmental organizations (NGOs) typically organize within collectives or umbrella groups to improve coordination. A byproduct of this is that the collectives, which tend to be dominated by pro-government organizations, serve to silence critical views. For example, these collectives declined to lobby against the very restrictive 2001 Law on Non-Profit Associations. This law provides for so onerous a process of registration that, three years later, most still have only provisional legal status and some have been denied registration altogether. The result is uncertainty and a lack of legal protection. Moreover, final guidelines on implementation of the law have not been promulgated, thus deepening NGOs' legal limbo.

The Rwandan government has encouraged formation of an NGO Forum to enhance coordination between the government and NGOs on development issues. Some fear that this forum could be used by the government to monitor and control civil society activity. Civil society organizations are largely dependent on foreign funding and have been accused of representing foreign interests.

Although the constitution and the Press Law of Rwanda state that the press is free, serious concerns remain about freedom of the press in practice. Independent journalists complain of harassment, especially when they report on sensitive subjects such as corruption, the military, and government abuses against dissenting voices. Self-censorship has been common since the genocide, and harsh penalties for divisionism served to aggravate this.

The state maintains economic control of newspapers. The New Times, which owns a publishing house and an English-language newspaper, is supported by the state. The Rwanda Independent Media Group, the next-largest publishing society, struggles to meet its costs. State agencies and state-controlled companies, the largest group of would-be advertisers, generally do not advertise in independent newspapers. Private companies advertise in pro-government papers so as not to offend the government.

There is currently one independent newspaper, Kinyarwanda-language Umuseso. Umuseso journalists have suffered continual harassment. The paper's first three managing editors fled the country during the paper's three-year history, as have several of its journalists. Journalists and editors are routinely called in for questioning, detained, asked to divulge their sources, and threatened. Issues of the newspaper, which is printed in Uganda, have been confiscated at the border when they contain controversial stories. The vice president of parliament has filed a defamation suit against Umuseso. Newsline, an English-language newspaper run by the same company as Umuseso, was banned in 2002 and briefly resumed operations in June 2004, then stopped.

Radio is by far the most effective medium for reaching the population. Independent radio was banned in 1994 after the independent station Radio-Television Libre des Mille Collines (RTLM) used the airwaves to incite genocide. However, a 2003 law set the stage for non-state stations to apply for licenses, although critics have complained that fees are prohibitively high. Six stations' applications for licensing were approved in January 2004, and four of these have started to broadcast. The stations that have begun to operate have pledged to avoid politics; Radio-10 (a popular music channel) uses news presented on government broadcasts. Foreign radio services do broadcast in the country, some in local languages. The parliamentary commission report on divisionism (see "Civil Liberties") made accusations against several foreign radio stations. The state maintains a monopoly on television.

In July 2004, Rwandan officials arrested Cesar Balume Wetemwami, a Goma-based Congolese photojournalist who crossed the border from the Democratic Republic of Congo (DRC) on an assignment. After a statement by the DRC-based Journalistes en Danger and international media reports, Rwandan officials handed Wetemwami over to Congolese authorities, and he was released on July 18.

Recommendations

• The electoral laws should be amended to ensure greater transparency in the electoral process (including registration of voters and candidates), the independence of the electoral commission, and freer campaigning. In order for such amendments to pave the way for free and fair elections in practice, however, the government must also open up space for independent political thought.
• RPF dominance over other political parties must end. The Political Forum should be used only to share views and not to impose consensus. New parties should be established, and parties or party members should not be accused of divisionism without proof of incitement of violence.
• The government should stop interfering with civil society and the media and should encourage these groups to exercise their roles as independent monitors of government policy by taking proactive steps to end self-censorship, such as recognizing critical views and acknowledging the role of NGOs as independent from government policy.
• The government must stop intimidating journalists who report on controversial topics.
• The government should address economic inequalities that privilege pro-government media by advertising in all media and refraining from confiscating newspapers that contain critical articles.

Civil Liberties – 2.21

Ten years after the end of the genocide, survivors and families of those who were killed have yet to receive any compensation. Large numbers of survivors, especially women – many of whom were raped during the genocide and suffer from AIDS – live in extreme poverty.⁸ Many Rwandans continue to suffer the effects of trauma. The government has established a Fund for Assistance to Genocide Survivors that provides some support to defray the costs of education and health care. However, no genocide victims have received compensation, and a draft law on reparations was never finalized.

A detailed report released by the Parliamentary Commission on Genocidal Ideology in mid-2004 documents instances of killings, threats, and discrimination as well as interference with the justice process. The report also alleges that plans are under way for further killings.⁹ The report names some individuals, organizations, and religious institutions that are allegedly responsible for these acts, but it does not substantiate its allegations in all cases. More than 20 members of parliament abstained from voting on the report, but none voted against it. The government endorsed the report in September 2004.

The International Criminal Tribunal for Rwanda (ICTR), based in Tanzania, is in the process of trying a handful of the most serious genocide offenders. The ICTR has been criticized for its slowness and inefficiency.

The vast majority of genocide suspects are to be tried in Rwandan courts. To date, approximately 10,000 people have been tried, with a conviction rate of approximately 80 percent. The first genocide trials in the country began in 1996, and the pace of trials increased steadily until 2001. With more than 100,000 detainees, it quickly became evident that it could take more than 100 years to complete the trials. Thus, the government introduced gacaca courts in 2002 to try the bulk of genocide cases. Gacaca courts have been established on a pilot basis in some areas, where they have completed lengthy pretrial phases. However, as of September 2004 the first actual trials were scheduled to take place no earlier than 2005, and much remained to be done in terms of preparing for the trials and training of judges. Since 2002, conventional courts have handled fewer cases as the gacaca law abolished Specialized Chambers, which had been created to hear genocide trials, and prosecutors turned their attention to preparing files for gacaca. Only 450 genocide suspects were tried in 2003.¹⁰ Observers say that even fewer were tried in 2004, as the government suspended most judicial operations to allow for an overhaul of the judicial system (see "Rule of Law").

Preliminary gacaca proceedings have resulted in large numbers of new accusations, leading analysts to predict that gacaca courts may ultimately face the prospect of trying 500,000 suspects or more. This is ironic, given that gacaca was supposed to expedite completion of the process rather than increase the work to be done. And it is clear that Rwanda's justice system lacks the capacity to try such a large number. For the time being, the government has not been arresting those newly accused, save in exceptional cases.

The government has barred gacaca from hearing cases of war crimes and revenge killings committed against Hutu, leading many to perceive it as victors' justice. Regular and military tribunals have tried few cases of this nature, and most of these resulted in only nominal penalties. The ICTR has also been accused of one-sided justice, as it has declined to investigate allegations of war crimes by the RPF.

Because the criminal justice system has been so overwhelmed by the genocide caseload, it has lacked resources to deal adequately with those accused of common crimes. The law protects against lengthy periods of detention without charge, but this is rarely respected in practice, for genocide or common crimes. Allegations of physical abuse at the time of arrest and interrogation are common. There are reports of torture in military detention facilities. Street children and itinerant traders are frequently subjected to arbitrary arrests.¹¹

During the first three years after the genocide, military and judicial authorities conducted widespread arbitrary arrests of genocide suspects. The country's prisons and jails quickly filled beyond capacity. Overcrowding reached epic levels, with the prison population swelling to more than 130,000 at its peak, and some 11,000 prisoners died of preventable diseases, malnutrition, and poor sanitation between 1994 and 2001. There were also reports of death in custody due to physical abuse by prison officials. While conditions have continued to improve over the past several years and overcrowding has become slightly less severe, conditions remain far below internationally recognized standards.¹²

In January 2003, the president decreed that more than 20,000 pretrial detainees be released, including those who had confessed and had already been detained for the length of their presumed sentences. However, they were still to be tried in gacaca. A substantial minority of those released were rearrested after new accusations surfaced. These releases marked the end of an earlier policy of releasing detainees against whom prosecutors had no concrete evidence, and the government is planning to try those who maintain their innocence after those who have confessed.

Local Defense Forces (LDFs), an armed civilian militia operating throughout the country, remain poorly trained and unpaid and have been accused of a number of abuses. LDFs accused of rape are rarely prosecuted and, if they are jailed, are often released within a few days.¹³ The National Police and Rwanda Defense Forces have reportedly taken measures to improve professionalism among their ranks.

A former member of Rwanda's external intelligence service, David Kiwanuka, was shot dead in Kenya in February 2004. It was thought that his killing was a targeted assassination, to prevent him from speaking out about the downing of President Juvenal Habyarimana's plane in 1994, which sparked the genocide. The crime has yet to be solved.¹⁴

Four genocide survivors were murdered in Gikongoro in 2003 and 2004, reportedly to prevent them from testifying in gacaca. Seventeen people accused of the killings were convicted and sentenced to death or life in prison. However, news of the killings led to fear, especially among genocide survivors, that there could be reprisals for testifying in gacaca. Although the government dealt with these accusations in an exemplary fashion, it is possible that they could have a chilling effect on potential witnesses in gacaca. The parliamentary commission on divisionism cited these killings as contributing to a spread of genocidal ideology in the country.

The National Human Rights Commission (NHRC), an institution created in 1999 and established in the 2003 constitution, has some power to help individuals whose rights have been violated. However, the commission tends to concentrate its efforts on promotion, rather than protection, of human rights. The NHRC congratulated the government on administration of the 2003 elections without criticizing disappearances, arbitrary arrests, and other acts of intimidation. The office of the ombudsman, created in the 2003 constitution, also has the power to help citizens aggrieved by the state. In the first months of its operation, the office was inundated with complaints from hundreds of citizens; it has already intervened with government agencies to solve some of their problems.

The Rwandan government has made significant progress in promoting gender equality in law and policy. The 2003 constitution reflects gender equality, as do most new laws, and the government is in the process of amending existing laws to eliminate gender discrimination. The constitution states that a minimum of 30 percent of government positions must go to women. Rwanda now leads the world in terms of representation of women in parliament, with women holding 48.8 percent of seats in the National Assembly.¹⁵ Women's groups have been particularly effective in lobbying the government to address historic and systematic patterns of discrimination against women at a policy level. Women also play a prominent role in the business community.

It has proven more difficult to overcome gender-based discrimination in practice, especially at the local level. Important gaps remain in legal protections, especially to prevent violence against women. The penal code fails to define rape as a crime. The government has made a priority of prosecuting individuals accused of raping young children, a phenomenon that has been on the increase since the genocide, but has not had sufficient resources to address the problem adequately. Few genocide prosecutions have included charges of sexual violence, despite recognition that egregious crimes against women were widespread. Trafficking of women and children is a crime, but due to lack of resources it remains a serious problem, especially trafficking carried on for the purpose of prostitution.

The Rwandan government has a policy that Rwandans should consider themselves first and foremost Rwandan, rather than as Hutu, Tutsi, or Twa. The logic behind this policy, which was first articulated by the National Unity and Reconciliation Commission during the transition period, is that the three ethnic groups, which make up the entire Rwandan population, have a common language and culture and, to a certain degree, ethnic divisions were imposed by foreigners whose influences were in part to blame for the genocide. While some observers question the wisdom of top-down enforcement of a single national identity, the Rwandan government maintains that its intention is to prevent discrimination and that this is the best way to prevent another genocide. As such, ethnicity has become something of a taboo in Rwandan society.

There is no longer explicit discrimination against members of ethnic groups, and laws and policies reflect this. However, some Tutsi genocide survivors, indigenous minority Twa, and members of the Hutu majority continue to complain that they are victims of discrimination in many aspects of government and society. Addressing these complaints of ethnic-based discrimination can be extremely difficult, as advocacy on behalf of any of these groups is often interpreted as promoting divisions within society and is thus illegal.

The constitution allows the president to appoint eight members of the senate to ensure representation of historically marginalized communities, a phrase widely considered to refer to the indigenous Twa. However, while the president has appointed four senators under this provision, he had yet to appoint a Twa as of September 2004. The ban on divisionism has made it difficult for Twa associations to protect their interests. The Community of Indigenous Peoples of Rwanda (CAURWA) – which has worked for more than a decade to address persistent societal inequalities against the Twa, including insufficient access to land, education, and employment – was denied the right to register on the grounds that its name and purpose promote divisionism and are contrary to the constitution.¹⁶

A new member of parliament (MP) represents the interests of people with disabilities. While the post is primarily a symbolic step forward, the MP says he intends to use his position to overcome societal attitudes that disabled persons are "a lost cause."¹⁷

The constitution recognizes freedom of association, but this right is curtailed in practice. The 2001 Law on Non-Profit Associations gives government authorities the power to control projects, budgets, and hiring of personnel so that NGOs will restrict themselves to supporting government efforts in development and service provision, not policy. Critical views expressed in policy dialogue have led to civil society organizations being accused of political activity and opposition to the government.¹⁸ Belief that the proper role of civil society is to support the government is so widespread that some NGOs have even condemned fellow groups for being critical of the government. Police have denied human rights organizations permission to hold meetings on a number of occasions. A human rights activist forced to flee Rwanda in 2004 cynically remarked that, if human rights groups did not report any meetings being broken up that year, this is because the organizations have been afraid to discuss topics the government does not approve.

The parliamentary report on genocide was highly critical of the Rwandan League for the Promotion and Defense of Human Rights (LIPRODHOR), Rwanda's only independent human rights organization, and three other community-based organizations, recommending that they be banned and some of their members prosecuted. LIPRODHOR was not given a chance to defend itself, and many observers felt the accusations were unfounded. A number of its leaders and employees fled the country.¹⁹ The report has had a chilling effect on independent voices, compounding the self-censorship already prevalent among human rights defenders and others.

Some trials of religious personnel have proven that a number of churches, including the Catholic Church, failed to protect Tutsis during the genocide. Since then, a number of smaller churches and sects have been established, and the government has accused some of these of political activities. Some have encountered difficulties in registering with the government.

In early 2002, the government banned a faith-based organization working on reconciliation. The organization was authorized to resume activities in 2004 after intervention by the ombudsman. In past years, the government had been accused of interfering in the internal affairs of religious organizations, including the appointment of religious leaders.

Relations between labor unions and the government have been strained since 1996 but are reportedly improving. Unions are able to advocate for the interests of their members to a limited degree. However, union membership is low, as a large percentage of the working population is involved in small-scale agriculture.

Recommendations

• A law guaranteeing compensation for genocide victims should be passed.
• The law governing NGOs should be amended to protect their autonomy and freedom of association. NGOs should be able to register with minimal hassle, the rules should be clear to avoid arbitrary abuses, and the government should not control project objectives or budgets.
• Government actions to root out genocidal ideology and divisionism should incorporate due process and human rights standards. The government should not publicly accuse individuals or organizations of these offenses without thorough investigation of facts and without giving them a chance to defend themselves. The definitions of these offenses should be made clear.
• Historically marginalized groups, such as the Twa, should be allowed to organize to advocate for their interests in accordance with the law, so long as there is no criminal intent or behavior.
• Genuine prosecutions of military and civilian personnel accused of revenge killings and war crimes should take place.

Rule of Law – 1.22

The challenges faced by the Rwandan judiciary have no parallel anywhere in the world. Participation in the genocide was on an unprecedented scale, and in its wake, the judiciary was decimated. Many lawyers and judges had been killed, had fled the country, or were themselves accused of being involved in the killing. The judiciary is still struggling to rebuild itself and deal with the massive undertaking of holding those responsible for genocide accountable.

The constitution of 2003 guarantees judicial independence, but in practice the judiciary is subject to influence by the executive and by members of the political, military, and economic elite. This has been apparent in some genocide trials, on which there have been credible reports that the executive dictated how judges should rule. The government, especially at the local level, has failed to ensure enforcement of judicial decisions in many cases, and the judiciary lacks sufficient authority to insist that its judgments be executed. In a number of instances, police rearrested individuals who were acquitted on genocide charges.

Since early 2004, the judiciary has functioned only in exceptional cases while awaiting implementation of planned judicial reform. In June 2004, the government implemented a sweeping overhaul of the judicial system aimed at increasing professionalism. More than 500 judges who lacked professional qualifications were fired, and 223 new judges were sworn in. Many of the new judges had only recently completed university. It is too soon to predict whether the new measures will be sufficient to overcome the weaknesses of the system. Some fear that the firing of magistrates signaled an intention to ensure that magistrates remain susceptible to influence by the RPF. Some observers say that the conditions that allowed the pre-genocide government to control the judiciary have essentially remained in place.

It is common for civil and criminal disputes to be handled outside the formal judicial system. Local officials often intervene in cases of accusations of rape to encourage the parties involved to resolve the matter amicably, in part to protect the victims from the stigma of being known as a rape victim. Street children arrested for petty theft are often beaten, jailed for one or two days, and then released without ever seeing a courtroom.²⁰ This is due in large part to how overburdened the court system is. The 2003 constitution established mediation committees to help resolve certain disputes at the local level before the parties go to court. However, the mediators are unpaid, which has led to some fears of corruption.

Lack of capacity among magistrates led to instances of corruption prior to the recent judicial reform. By some accounts, it was standard practice to give a gift or payment to a magistrate to ensure that one's case would be heard in a timely fashion or that it would be decided in one's favor.

The presumption of innocence is protected in the constitution but is essentially absent in many criminal cases, especially genocide cases. The government publishes a list of suspects accused of the most heinous genocide crimes. While individuals must still be tried, the list leads others in Rwandan society to view those named as guilty and can result in a loss of civil rights, such as suffrage. Moreover, some versions of the list were found to have a significant number of errors.²¹ There are also concerns about the broadcasting on radio of the names of some of those accused of divisionism.

The 2003 constitution guarantees the right to independent counsel, a right that was not previously assured. In genocide trials in conventional courts, various national and international initiatives have attempted to provide defense counsel for indigent defendants. However, in genocide and common criminal trials defendants do not always have access to defense as there are only approximately 120 qualified lawyers in the country, and few Rwandans have the means to hire a lawyer. Societal perceptions that defense lawyers were aiding the perpetrators of genocide, prevalent in the first years after the genocide, have largely been overcome.

The trial of former President Pasteur Bizimungu, the former minister of transportation, and six others ended in 2004. Bizimungu was sentenced to 15 years in prison and the others to 5 or 10 years. They had been charged with threatening state security after they attempted to create a political party in 2001. There were numerous irregularities at the trial, including reports that some evidence used at trial had been obtained using torture, and one prosecution witness recanted, claiming his testimony had been made under police duress. Bizimungu's defense lawyer was also briefly detained by the judge for contempt of court.²²

The gacaca system is separate from the rest of the Rwandan judiciary. Gacaca has been heavily criticized in its pilot phase, and it is not clear whether it can meet its objectives. Given the high number of potential defendants and the fact that the start of trials has been delayed by years, it is failing in its objective to speed up trials. In response to difficulties in obtaining quorums for pilot phases, attendance at gacaca is now mandatory under law for all community members, which some interpret as inconsistent with its professed participatory nature.

The accused are not allowed to be assisted by defense counsel in gacaca. Rwandan lawyers called on the government to amend the gacaca law to bring it into compliance with the new constitution and allow counsel, but the government has said that this would not be practicable and would bog down gacaca courts.²³ Furthermore, gacaca courts sometimes operate outside the parameters of the law, as some judges lack basic understanding of legal principles. Gacaca judges have received very little training, and observers have found that what training judges did receive has often been inconsistent from one training site to the next.

Senior military officials continue to play an important role in the government and akazu. While security forces have become more professional in recent years, they continue to commit abuses in many cases. For example, police and military intelligence were responsible for much of the intimidation and abuse in the run-up to the elections (see "Accountability and Public Voice"). Rwanda has also been criticized for maintaining stability within the country by launching a brutal and exploitative occupation of the DRC. There have been credible reports of Rwandan troops in the country again since the official withdrawal in 2002, although the Rwandan government publicly denied this.

Land was one of the root causes of the genocide, and access to land remains a volatile issue, as Rwanda is a densely populated country. In 1959, hundreds of thousands of Tutsi refugees fled to neighboring countries in the wake of ethnic violence, abandoning their land to Hutu who remained. In 1994, the genocidal government used this in its propaganda, warning Hutu that the Tutsi were going to take their land back and inciting the Hutu to kill the Tutsi enemy before this could happen. In the immediate aftermath of the genocide, a huge number of Hutu refugees fled the country at the same time as the 1959 refugees returned to Rwanda. Many of the 1959 returnees occupied houses and land that had been left vacant by those who fled more recently, averting tension until the new-caseload refugees returned in massive waves of (forced) repatriation in 1997-98.

In an effort to find a solution for the old-caseload refugees, who were not supposed to claim the homes or land they had left decades ago, and to avoid further conflict, the government and donors built settlement villages. The government later adopted a national policy of villagization, which required all Rwandans to move to these villages, instead of the traditional, dispersed habitats. From 1998 to 2000, villagization was carried out on a large scale, sometimes by force or coercion. Many farmers lost their land in the process or had their houses destroyed, and many families were obliged to share their land with old-caseload refugees.²⁴

Approximately 90 percent of Rwandans depend on subsistence agriculture to make their living. As families have grown and more people are living off smaller plots, the government has sought ways to better utilize the land. In a number of cases, senior government and military officials or important businessmen assumed control of large plots of land to use as commercial farms. Families who were displaced from the land rarely had access to due process or compensation for their loss.

The 2003 constitution guarantees the right to own private property individually or collectively. The government has been working on a revised land law and land policy, in part to grant individuals full ownership rights over the land they farm. A number of elements of the draft could be problematic. The Poverty Reduction Strategy requires that all plots of less than one hectare be eliminated, yet it is not clear what compensation would be provided for families who depend on them. The draft also threatens to eliminate the traditional property system, ubukonde, which grants rights to the lineage group of those who first cleared the land and is still used in some parts of the northwest of the country. The policy would revert to villagization but does not address problems with its earlier implementation, including forced relocation and decreased agricultural productivity. The draft would also confirm the state's power to determine whether land is being used productively and, if not, expropriate it.²⁵

A 1999 law mandated that girl children be allowed to inherit land on an equal basis with boys, but this provision is not always implemented, as cultural practices often prevail.²⁶ The draft land law fails to address some of the societal realities that discriminate against women with respect to property ownership.

The municipal government of Kigali has been working on transforming the capital city to make it more cosmopolitan. In order to accomplish this, city authorities have closed down the central market to make room for construction of a shopping mall, demolished large numbers of business kiosks from city streets in 2004, and forced itinerant traders away from the city center. Those affected have had little access to due process or compensation for loss of property and livelihood.

Recommendations

• The government must expedite training of gacaca judges in basic legal principles – including the presumption of innocence and protection of genocide survivors – and proper procedures so that the implementation of gacaca trials can begin without further delays.
• The judiciary should make sure that courts continue to hear cases during implementation of judicial reform to minimize the unacceptable delays that exist.
• The government should accelerate passage of the land law and policy after making substantive changes to ensure that compulsion is not used to enforce the new law and avoid increasing the number of landless Rwandans. The law and policy should not promote forced relocation, should not allow for people to be dispossessed of their land without due process and compensation, and should go further than previous legislation to enforce women's property rights in practice.

Anticorruption and Transparency – 1.97

Rwanda enjoys the reputation of having relatively low corruption as compared to many other African countries, and it has instituted tough new anticorruption measures in the past year. However, corruption does remain a problem in the bureaucracy. The government has professed commitment to privatization, but the state retains control of many of the country's largest companies. Senior government and military officials maintain substantial business interests.

Pursuant to the national policy objective of promoting foreign investment, Rwanda has attempted to root out corruption.²⁷ Government institutions to fight corruption include the auditor general (which audits government finances), the National Tender Board (which is supposed to ensure that government contracts are awarded fairly), and the semi-autonomous tax agency, the Rwanda Revenue Authority. President Kagame was recently quoted as saying that the bottom line in fighting corruption is political will and that institutions such as a strong parliament, independent judiciary, free media, and civil society are less important.²⁸ President Kagame has also indicated that the independent newspaper Umuseso performs a useful role in curbing corruption,²⁹ although this has not protected its journalists from arrest and intimidation by authorities for reporting on corruption (see "Accountability and Public Voice").

The 2003 constitution mandates that the budget process be transparent and that the parliament oversee that process. However, parliament has yet to assert this power in practice, and many questions remain, including how responsibility for budget oversight should be divided between the two houses of the assembly.³⁰ Under the government's decentralization program, Rwanda's 106 districts are theoretically to be responsible for their own budgeting; but, given lack of capacity of local government structures and the difficulty of raising tax revenues in poor communities, it remains to be seen how this will be implemented. Within the ministry of finance, the Central Projects and External Finance Bureau (CEPEX) is mandated with overseeing the national budget and administration of foreign assistance but is not independent and has been criticized as a weak institution.

The office of the ombudsman has powers to root out official corruption, in addition to its mandate to help citizens who have been aggrieved by the state (see "Civil Liberties"). It remains to be seen whether the government will grant the new institution of ombudsman the resources and autonomy to do its job. One of the ombudsman's first tasks was to request all government officials (including President Kagame) to declare their wealth, and it is currently investigating those declarations. In 2004 the government fired 139 police officers accused of corruption. Similarly, the government removed 47 district mayors and 5 governors apparently linked to allegations of corruption.

The auditor general's office audited 10 ministries in 2002, including defense. Its report, released in March 2004, documented irregularities in the public procurement process in several ministries and parastatal companies resulting in millions of dollars in losses for the government. The report also found mismanagement of some revenue sources, such as visa fees collected abroad and deposited in private accounts.³¹ However, there were also concerns that the auditor general may not have sufficient autonomy to be an effective watchdog. The 2003 constitution, which provides for the role of the auditor general, does not require that the auditor general's report be made public, and the constitution grants the president alone the power to remove an auditor general.³²

Government officials accused of abuse of power are rarely prosecuted. The former attorney general resigned in disgrace in early 2004 when allegations surfaced that he had engaged in corrupt activities. His resignation was touted as a sign that such impunity would no longer be tolerated, but he has not been prosecuted. In April 2004, a former minister who was dismissed in 1997 amid corruption allegations was appointed to run the state-owned coffee company.³³

A UN panel of experts investigating the nexus between illegal resource exploitation and the war in the DRC accused Rwandan troops of illegally benefiting from Congo's substantial wealth in natural resources. The Rwandan government dismissed the panel's reports as biased and has failed to carry out a serious investigation into the allegations. Nevertheless, wealth obtained from the Congo is clearly visible in Kigali, and analysts report that economic activity in Rwanda is far larger than what the Rwandan economy alone could support.

Rwanda was one of the first countries to volunteer for the African Peer Review Mechanism under NEPAD, an apparent sign of its commitment to transparency. Rwanda began its self-assessment, the first step in the process, in June 2004. However, the government's crackdown on LIPRODHOR occurred just days after a high-level NEPAD mission visited the country, raising questions about Rwanda's commitment to NEPAD's goals of transparency and good governance.

Government policies are often lacking in transparency and inaccessible to the general public. No law guarantees public access to government information. The primary means the government uses to impart information to the public is through National Radio broadcasts and so-called sensitization meetings organized by local officials. These meetings are sometimes billed as soliciting popular feedback, but most Rwandans view them as forums for the government to provide information without allowing the people to express differing points of view. In this way, the government is able to control when and to what information the public has access.

Recommendations

• The government should afford institutions such as the ombudsman and the auditor general the autonomy necessary to exercise their functions.
• The government must refrain from harassing journalists and others who report cases of corruption.
• The government should follow up with investigations and prosecutions to ensure that government officials and members of the elite accused of corruption are not above the law.
• The government should conduct an independent investigation into illegal resource exploitation in the DRC, institute measures to ensure that business activities of Rwandan military and other citizens in DRC are conducted in accordance with the laws, and prosecute those alleged to have committed criminal acts.

Notes

1 Law on Discrimination and Sectarianism, Law No. 4/72001, 18 December 2001.

2 "Silence in the Court of King Paul – Rwanda," The Economist, 30 October 2004.

3 Rapport Final sur l'election presidentielle et les elections legislatives (Brussels: European Union, Mission de L'Observation Electorale de L'Union Europeenne Rwanda [EU Mission], 2003), 4.

4 "Preparing for Elections: Tightening Control in the Name of Unity" (New York: Human Rights Watch [HRW], Backgrounder, 8 May 2003); "Rwanda: Run-up to presidential elections marred by threats and harassment" (New York: Amnesty International [AI], 21 August 2003).

5 Rapport Final (EU Mission), 9.

6 Ibid., 17.

7 Ibid., 12.

8 "Rwanda: Broken Bodies, Torn Spirits Living with Genocide, Rape and HIV/AIDS" (Kigali and London: African Rights [AR], 15 April 2004; "Marked for Death, Rape survivors living with HIV/AIDS in Rwanda" (AI, 5 April 2004); "Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda" (HRW, 30 September 2004).

9 "Rapport de la Commission Parlementaire Ad Hoc, Cree en date du 20 janvier 2004 par le Parlement, Chambre des Deputes, pour Analyser en Profondeur les Tueries Perpetrees dans la Province de Gikongoro, L'Ideologie Genocidaire, et Ceux qui la Propagent Partout Au Rwanda" (Kigali: Chamber of Deputies of Rwanda, June 2004), unofficial translation from Kinyarwanda into French.

10 "Rwanda" in AI Report 2004 (AI), http://web.amnesty.org/web/web.nsf/print/2004-rwa-summary-eng.

11 See, e.g., Robert Walker, "Rwanda Struggles with Street Children," BBC News, 3 February 2004.

12 "Rwanda: The enduring legacy of genocide and war" (AI, 5 April 2004).

13 Ibid.

14 John Swain, "The Riddle of the Rwandan Assassins' Trail," The Sunday Times, 4 April 2004.

15 "Rwanda Leads World Ranking of Women in Parliament" (Geneva: Inter-Parliamentary Union, 22 October 2003).

16 "Rwanda: Atteinte a la liberte d'association/menaces," (Paris: Federation Internationale des Ligues des Droits de l'Homme, 2 December 2004).

17 Marcellin Gasana, "Rwanda's Disabled: A Legacy of the Genocide," Internews, 1 April 2004.

18 "Searching for Sense and Humanity: Civil Society and the Struggle for a Better Rwanda," draft report provided to author, Kituo Cha Katiba [East African Center for Constitutional Development], Kampala, 2004, 89.

19 "Rwanda: Parliament seeks to abolish human rights group" (HRW, 2 July 2004).

20 Lasting Wounds: Consequences of Genocide and War for Rwanda's Children (HRW, April 2003).

21 Leave None to Tell the Story (HRW, March 1999), 752.

22 "Rwandan trial 'bad for democracy,'" BBC News, 8 June 2004.

23 "Lawyers Call on Government to Harmonize Gacaca Law with Constitution," IRIN News, 30 December 2003.

24 Uprooting the Rural Poor (HRW, June 2001).

25 Herman Mushara and C. Huggins, "Land Reform, Land Scarcity and Post Conflict Reconstruction: A Case Study of Rwanda," Eco-Conflicts (Nairobi: African Centre for Technology Studies) 3, 3 (October 2004): 2.

26 Jennie E. Burnet, Culture, Practice, and Law: Women's Access to Land in Rwanda (Kigali: Rwanda Initiative for Sustainable Development [RISD], 2001).

27 "Rwanda: Protect Investors," New Times, 13 September 2004.

28 Andrew Mwenda, "Political Will is Central to the Fight Against Corrupt Institutions," The Monitor, 1 September 2004.

29 "Country Report: Rwanda," The Economist Intelligence Unit 15, November 2004, 12.

30 Ian Lienert, "Choosing a Budget Management System: The Case of Rwanda" (Washington, DC: International Monetary Fund [IMF], Working Paper, WP/04/132, July 2004).

31 Arthur Asiimwe, "Rwanda Unearths Tendering Scam," The East African, 15 March 2004; "Rwanda: Audit unearths irregularities in use of state funds," IRIN News, 5 March 2004.

32 Lienert, "Choosing a Budget Management System" (IMF), 14-15.

33 "Former Minister Appointed Director of Coffee Company," New Times, 21 April 2004.