LITMIR.BIZ

Скачать книгу

on conciliation, recognition that resolution of conflict is inherently good and that its reverse—continued conflict or controversy—is bad or dysfunctional, a view of harmonious behavior as more civilized than disputing behavior, the belief that consensus is of greater survival value than controversy” (Nader 1990:2).

      In Rwanda, law-based mediation combined the emphasis on unity with the threat of state-backed punishment, detailed in the written laws instantiating the institutions. This punitive force included consequences that directly impacted people’s daily survival, such as imprisonment, property seizure, and fines. The power to punish was explicit, as when authorities told people they could be sanctioned for not complying, threatening them with fines or incarceration, and it was also represented symbolically through the physical presence of signs that indexed state power, such as sashes worn by the mediators or the presence of armed prison guards. The ability to forcibly implement judgments and apply punishments was central to people’s experience of harmony legal models, and is what distinguished legally mediated decisions from informal, nonlegal alternatives. As one case participant observed: “In the past, if a man or woman had problems, they would go see the priest. Today it is changing, people seek more the rigor of the law, because these courts have binding force. If you don’t comply, then you are sanctioned for it. Going to a pastor, he will only advise you, you can either abide or decide not to. But in courts, there is administrative force.”⁹

      I see law-based mediation in Rwanda as a form of government through community, as Rose puts it, in which governments identify “weak communities” as a problem needing to be solved through technical, governance solutions aimed at mobilizing those same communities to solve their own problems through self-government. Mediation in grassroots legal forums was a way in which people who live proximately were intended to become linked into a community or, as Rose calls it, a “moral field binding persons into durable relations” that emphasized emotional relationships and microcultures of values and meaning (Rose 1999:176). Specifically, law-based mediation aimed at shaping and directing people to manage themselves and, equally important, to manage their relationships to one another, to take on “active practices of self-management and identity construction, of personal ethics and collective allegiances” (Rose 1999:172–176). That is, gacaca, comite y’abunzi, and the legal aid clinic were designed, like other local-level mediation processes in other contexts (Abel 1982b:11; Merry 1993:58), to emphasize relationships and interpersonal conflict resolution skills, using mediation principles to (re-)create moral bonds and emotional relationships that were shattered during the political violence.

      Considering genocide courts, mediation committees, and a legal aid clinic within one analytic frame is a deviation from existing literature on Rwanda, which typically focuses on genocide-related justice as analytically distinct from nongenocide disputes.¹⁰ Separating our analysis based on externally imposed jurisdictional distinctions obscures continuities both in the top-down social engineering goals of these forums and in how most Rwandans experienced mediation as a mode of power that cross-cut institutional frameworks. The more I observed court sessions and spoke with participants themselves, the more I saw that, contrary to one mayor’s claim that “comite y’abunzi has nothing to do with gacaca,”¹¹ these forums were indeed connected in people’s lived experience. In the middle of the first decade of the new century, Rwandans who sought legal redress were first routed through mediation practices that combined harmony and punishment—whether filing a case against a neighbor for looting property during the genocide or for defamation, whether testifying against an acquaintance for participating in killings during the genocide or against an employer for wrongful termination, whether seeking paternal recognition or inheritance. I am thus arguing that “an examination of the ordinary is just as important as the apparently extraordinary or exceptional” (Kelly 2008:353), not only in understanding how people live through political violence (as Kelly argued with respect to Palestine) but also in exploring how people cope with the aftermath of genocide.

      Analyzing gacaca, comite y’abunzi, and the legal aid clinic through Nader and Rose draws attention to how mediation was a technique of governance intended to reshape postgenocide Rwanda into a particular kind of community, based on exhortations to unity that were justified as cultural. There is a paradox when community is the object of government where the idea of community is assumed to be natural and preexisting, yet is also being technologically enacted (Rose 1999:177). The sleight of hand that presents “community” as apolitical rather than constituted through contestation and suffused with power imbalances warrants investigation—especially in a context like Rwanda, where efforts to rebuild the social fabric in the wake of genocide were particularly pronounced, by a government that was increasingly authoritarian. That is, we have to understand postgenocide Rwanda not as having a priori cohesion but rather as attempting to use these decentralized legal forums to create unity. Other anthropologists have underscored the importance of denaturalizing the idea of “community” as a “repository of innate solidarity” at the heart of official postconflict interventions, as Theidon has argued with respect to Peru in the aftermath of decades of violence between the government and Shining Path (2009:296; 2012:266, 269). Similarly, Richard Wilson has critiqued the ways that in South Africa, the idea of ubuntu, an “expression of community, representing a romanticized vision of the rural African community based upon reciprocity, respect for human dignity, community cohesion and solidarity” became “a key political and legal notion in the immediate post-apartheid order” (Wilson 2001:9). What, we must ask, was at stake in using mediation as a tool of unity, backed by punitive law, in postgenocide Rwanda?

      Mediation as Statecraft: Denaturalizing the Cultural Justification

      A month after Alphonse’s trial, sitting adjacent to the same courtyard, an elderly umwunzi (mediator) held my gaze while explaining to me and my Rwandan research assistant about the cultural history of dispute resolution in Rwanda. He described:

      When I was born in 1928, gacaca and abunzi were in place as the only judicial system. The goal of these institutions in the past was to unite and to reconcile people. They gave messages of love, coming together, socializing. In the past, there were not any of the current kind of regular courts; those only came with the colonial rule of the Belgians. There were the king’s courts, but even those were just a last resort in the hierarchy beginning with gacaca and abunzi. It was the duty of abunzi to follow up and make sure the two parties reconciled. People used to bring beer to share, or exchange cows, or even intermarry, and these exchanges created strong bonds. Gacaca and abunzi now are pillars for development. You must have judicial systems like that in place to reconcile and develop.¹²

      This characterization was consistent with how the Rwandan government authorities legitimized the harmony legal models as, according to printed brochures and the government’s websites, “traditional community courts”¹³ based on “the inspiration of the traditional context of conflict resolution.”¹⁴ These authorities claimed that Rwandans historically had dispute resolution systems that eschewed the winner-take-all basis of Western courts, instead using respected elders to solve specific disputes between individuals and families to strengthen communal ties. Indeed, scholars writing on Rwanda note a long-term presence of conciliation-based, decentralized mechanisms for resolving disputes in the region now known as Rwanda,¹⁵ as I discuss more in Chapter 2, consistent with broader-reaching customary law practices across much of sub-Saharan Africa. This philosophy was consistent with how classic analyses of African adjudication often stressed that local courts in Africa, whether formal or moots, aimed to restore breaches in relationships among members in an ongoing community in order to restore equilibrium.¹⁶ Much like the classic ethnographic examples, postgenocide Rwanda’s harmony legal models had no lawyers, incorporated broad participation, and had minimal hierarchy among disputants, judges, witnesses, and other attendees, all consistent with a spirit of compromise rather than adversity. They used wide rules of evidence, given that the issue at hand was understood as a breach of deeply embedded relationships and practices, rather than narrowly focusing on a specific point of law. Finally, the judges or mediators at the center of these processes explicitly and clearly articulated social norms in an effort to socialize litigants as well as other participants. Obarrio (2014) has recently described similar community courts in Mozambique.

Скачать книгу