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Rwanda's Gacaca CourtsBetween Retribution and Reparation$

Paul Christoph Bornkamm

Print publication date: 2012

Print ISBN-13: 9780199694471

Published to Oxford Scholarship Online: May 2012

DOI: 10.1093/acprof:oso/9780199694471.001.0001

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(p.167) Appendix

(p.167) Appendix

Source:
Rwanda's Gacaca Courts
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Oxford University Press

(p.167) Appendix

The Gacaca Law (Organic Law No 16/2004 of 19 June 2004 as modified by Organic Laws No 28/2006 of 27 June 2006, No 10/2007 of 1 March 2007, and No 13/2008 of 19 May 2008)

The following coordinated version of the Gacaca Law as of May 2008 has been put together by the author. It is based on Organic Law No 16/2004, and includes the amendments of 2006, 2007, and 2008.1 All amendments are reprinted in italics. Since the version prior to the 2008 amendment was applied in the majority of the Gacaca trials, the following version includes both the provisions prior and subsequent to the 2008 amendment. Regarding some provisions, the 2008 amendment merely rephrases the former provision in slightly different language. In these cases, it is obsolete to reprint both. Instead, only the 2008 version is provided. In my study, the version reprinted here is quoted as the ‘Gacaca Law’. If the version of the law as reprinted here includes two alternative provisions, the one referred to is indicated, unless the statement refers to both versions of the provision. I have not corrected any errors in the law text. In the most obvious cases, I inserted corrections in square brackets or footnotes.

Organic Law No 16/2004 [of 19 June 2004] establishing the organisation, competence and functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994

As modified by

Organic Law No 28/2006 of 27 June 2006,

Organic Law No 10/2007 of 1 March 2007, and

Organic Law No 13/2008 of 19 May 2008

We, Kagame Paul,

President of the Republic;

The Parliament has adopted and we sanction, promulgate the following Organic Law and order it to be published in the Official Gazette of the Republic of Rwanda.

The Parliament:

The Chamber of Deputies, in its Cession of June 17, 2004;

The Senate, in its session of June 10, 2004;

  1. [1] Given the Constitution of the Republic of Rwanda of 04 June 2003, as amended to date, especially in its Articles 9–1 and 2, 61, 62, 88, 90, 93, 108, 118–7, 152 and 201;

  2. [2] Revisited the organic law no 40/2000 of January 26, 2001, setting up Gacaca courts and organizing prosecutions for offences constituting the crime of genocide or crimes against humanity, committed between October 1, 1990 and December 31, 1994, as modified and completed to-date; (p.168)

  3. [3] Revisited the organic law no 08/96 of 30th August 1996 on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since October 1, 1990;

  4. [4] Revisited the decree-law no 09/80 of July 7, 1980 establishing the Code of judicial organization and competence confirmed by the law no 01/82 of January 26, 1982, as modified and completed to date;

  5. [5] Revisited the decree-law no 21/77 of August 18, 1977 instituting the penal code as modified and completed to date;

  6. [6] Revisited the law of February 23, 1963 on the Code of criminal procedure, as modified and completed to date;

  7. [7] Considering the crimes of genocide and the crimes against humanity committed in Rwanda from October 1, 1990 to December 31, 1994;

  8. [8] Considering that such crimes were publicly committed in the eyes of the population, which thus must recount the facts, disclose the truth and participate in prosecuting and trying the alleged perpetrators;

  9. [9] Considering that testifying on what happened is the obligation of every Rwandan patriotic citizen and that nobody is allowed to refrain from such an obligation whatever reasons it may be;

  10. [10] Considering that the committed acts are both constituting offences provided for and punished by the Penal Code, and crimes of genocide or crimes against humanity;

  11. [11] Considering that the crime of genocide and crimes against humanity are provided for by the International Convention of December 9, 1948, relating to repression and punishment of the crime of genocide.

  12. [12] Considering the convention of November 26, 1968 on imprescriptibility of war crimes and crimes against humanity;

  13. [13] Considering that Rwanda ratified those Conventions with the decree-law no 8/75 of February 12, 1975 ratifying different International Covenants on human rights, disarmament and preventing and suppressing actions that may result into conflicts among peoples and countries and published them in the Official Gazette of the Republic of Rwanda, without, however, providing for special sanctions for these crimes until the time when they were committed;

  14. [14] Considering, consequently, that prosecutions must be based on the penal code of Rwanda;

  15. [15] Considering the necessity to eradicate for ever the culture of impunity in order to achieve justice and reconciliation in Rwanda, and thus to adopt provisions enabling rapid prosecutions and trials of perpetrators and accomplices of genocide, not only with the aim of providing punishment, but also reconstituting the Rwandan Society that had been destroyed by bad leaders who incited the population into exterminating part of the Society;

  16. [16] Considering the necessity for the Rwandan Society to find by itself, solutions to the genocide problems and its consequences;

  17. [17] Considering that it is important to provide for penalties allowing convicted persons to amend themselves and to favour their reintegration into the Rwandan Society without jeopardizing the people's normal life;

(p.169)

Adopts:

Title I: Offences under the Applicability of this Organic Law

Article 1

This organic law establishes organization, competence and functioning of Gacaca courts charged with prosecuting and trying the perpetrators of the crime of genocide and crimes against humanity, committed between October 1, 1990 and December 31, 1994, or other crimes provided for in the penal code of Rwanda, but according to the declarations from the Public prosecution or testimonies against the defendant, as well as the defendant's confessions in relation to criminal acts carried out with the intention of committing genocide or crimes against humanity.2

Article 2

The persons or their accomplices prosecuted for their participation in criminal acts that put them in categories 2 and 3, as defined by article 51 of this organic law, are answerable to Gacaca Jurisdictions referred to in Title II of this organic law. Gacaca courts apply the provisions of this organic law.

Persons who, by the virtue of acts committed, rank in the first category, as defined in Article 51 of this organic law, are tried before to ordinary courts which apply the common law content and procedure rules subject to exceptions provided for by this organic law.

As regards the subject of the action, only provisions of this organic law prevail.

Persons referred to in the preceding paragraphs, are tried before the courts defined in those paragraphs, even if their co-defendants are prosecuted by courts different from theirs. In that case, their co-defendants can only be summoned to testify in that trial.

Article 2 [as modified by article 1 Organic Law No 13/2008]

Any person or an accomplice prosecuted for an act that puts him or her in the first category, paragraph 3, 4 and 5, the second and third category as provided in article 9 of this law [article 51], shall be tried by Gacaca Courts referred to in Title II of this law. Gacaca courts shall apply the provisions of this law.

Any person prosecuted for an act that puts him or her in the first category, paragraph 1 and 2 as provided in article 9 of this law [article 51] shall be tried by ordinary or military courts applying Ordinary Rules of Procedure but subject to exceptions provided by this Organic Law.

This Organic Law shall apply to all acts provided herein.

Persons referred to in the proceeding paragraphs shall be tried by courts named therein and although a co-accused is prosecuted by a different court, he or she may be summoned to testify in a specific trial. (p.170)

Title II: Setting up, Organisation and Competence for Gacaca Courts and Relationship with Other Institutions

CHAPTER ONE: SETTING UP AND ORGANISING GACACA COURTS

Section I: Setting Up and Jurisdiction

Article 3 [as modified by article 2 Organic Law No 13/2008]

It is hereby established a Gacaca Cell Court, Gacaca Sector Court and an Appeal Court.

These courts shall hear cases of crimes of genocide or other crimes against humanity committed between October 1, 1990 and December 31, 1994, in such a manner as provided for by Organic Law No 16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994 as amended to date.

Article 4 [as modified by article 2 Organic Law No 28/2006]

The jurisdiction of Gacaca Court of the Cell and that of the Sector are the former Cell and the former Sector respectively while that of Appeal is the former Sector as such structures were provided for by the law before the Organic law No 29/2005 of 31/12/2005 determining administrative entities of the Republic of Rwanda was published in the Official Gazette.

The list of Gacaca Courts is indicated on appendix of this Organic Law [No 28/2006].

SECTION II: ORGANS OF GACACA COURTS

Sub-section 1: General Provisions

Article 5

The Gacaca Court of the Cell is made up of a General Assembly, a Seat for the Gacaca Court and a Coordination Committee.

The Gacaca Court of the Sector, as well as the Gacaca Court of Appeal are made up with a Sector General Assembly, a Seat for the Gacaca Court and a Coordination Committee.

The competent instance which has the powers to appoint the Seat members or the competent one to appoint members of the Coordination Committee, is also competent for their replacement.

Sub-section 2: The General Assembly

Article 6 [as modified by article 3 Organic Law No 13/2008]

The general assembly of the Gacaca Cell Court shall be composed of all the residents of the jurisdiction of that Court aged eighteen (18) years and above.

When it appears that the number of residents of that jurisdiction aged eighteen (18) years and above is less than Two hundred (200), that jurisdiction shall be merged with another Gacaca Cell Court within the same jurisdiction of the Gacaca Sector Court to make a Gacaca Cell Court. The same shall apply when it appears that the number of persons with integrity as defined in article 8 of Organic Law no 16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and (p.171) December 31, 1994, as amended to date is not reached. The merged Gacaca Courts of the Cells shall proceed to re-elect persons of integrity.

When merged Gacaca Cell courts fail to raise the required number of persons of integrity, and there are no other Gacaca cell courts in the jurisdiction of the Sector Gacaca court, the Gacaca Cell courts shall be merged with the Gacaca Cell courts falling in the jurisdiction of the neighboring Sector Gacaca court. The Sector Gacaca court where the merged courts formerly belonged shall also be merged with the Sector Gacaca court where the merged Gacaca cell courts belonged.

The decision to merge a Gacaca Cell Court with the jurisdiction of another shall be taken by the National Service in charge of the follow up, supervision and coordination of the activities of Gacaca Courts on its own initiative or upon request by the Mayor of a District informing the Governor of the Province or the Mayor of Kigali City.

Article 7

The General Assembly for the Sector is composed of the members of the following organs:

  1. The Seats for the Gacaca Court of the Cells constituting that sector;

  2. The Seat for the Gacaca Court of the Sector;

  3. The Seat for the Gacaca Court of Appeal.

Sub-section 3: The Seat for the Gacaca Court

Article 8 [as modified by article one Organic Law No 10/2007]

Each Bench of the Gacaca Court is made up of seven (7) persons of integrity and two (2) substitutes.

A Gacaca Court may have more than one Bench where necessary.

The new Bench shall elect from its members an executive committee and shall be given cases to be tried.

The National Service of Gacaca Courts draws up the modalities for the establishment of the Benches of Gacaca Courts and their collaboration modalities.

Article 9

Before exercising his or her duties, every member of the Seat for the Gacaca Court shall take the following oath:

“I……………………solemnly swear to the Nation that I shall:

  1. diligently fulfill the responsibilities entrusted to me;

  2. remain loyal to the Republic of Rwanda;

  3. observe the Constitution and the other laws;

  4. work for the consolidation of national unity;

  5. conscientiously fulfill my duties of representing the Rwandan people without any discrimination whatsoever;

  6. never use the powers conferred on me for personal ends;

  7. promote respect for the freedom and fundamental rights of human beings and safeguard the interests of the Rwandan people.

Should I fail to honour this oath, may I face the rigours of the law: So help me God.”

Article 10

A member of the Seat for the Gacaca Court cannot judge or decide on a case in which he or she is a party or is prosecuted: (p.172)

  1. his or her spouse;

  2. his or her parent, grandfather and grandmother, relatives, children and grandchildren or those of his or her spouse;

  3. his or her uncles, aunts and maternal or paternal cousins;

  4. the person with whom it was already existing serious enmity;

  5. the person with whom he or she has deep friendship relations;

  6. the person for whom he or she is a guardian;

  7. any other relation considered incompatible with the honest person's independence.

In one of these hypotheses, the member of the Seat concerned shall decline to act in the case. Failure to do so, any person who knows about the existence of one of these causes informs, before the plea as to the content, the Seat which decides all matters ceasing.

However, the concerned person so objected to is admitted to testify for or against the prosecution.

Sub-section 4: The Coordination Committee

Article 11

Members of the Seat for a Gacaca Court elect among themselves, with a simple majority, the Coordination Committee made up with a President, a first Vice-President, a second Vice-President and two secretaries, all of them must know how to read and write Kinyarwanda.

The members of the Coordination Committee are elected for a one (1) year mandate which may be renewed.

The secretaries of Gacaca Courts shall be responsible for report making and assume the functions of secretaries for Gacaca Courts

Article 12

The Coordination Committee shall carry out the following functions:

  1. to convene, preside over meetings and coordinate activities of the Seat for the Gacaca Court;

  2. to register complaints, testimonies and evidences given by the population;

  3. to receive files for the accused answerable to Gacaca Court;

  4. to register appeals filed against judgments passed by Gacaca Courts;

  5. to forward to the Gacaca Courts of Appeal, files of judgments appealed against;

  6. to register decisions made by organs of the Gacaca Court;

  7. to collaborate with other institutions in implementing decisions made by the Gacaca Court.

SECTION III: MEMBERS OF THE ORGANS FOR GACACA COURTS

Article 13 [as modified by article 4 Organic Law No 13/2008]

The General Assembly of a Gacaca Cell Court shall elect from itself seven (7) persons of integrity that will constitute the bench and two (2) deputies. (p.173)

The General Assembly of a Gacaca Sector Court shall elect, from itself seven (7) persons of integrity and two deputies for each required bench of Gacaca Court of Appeal and seven (7) persons of integrity and (two) deputies for each bench required in the Gacaca Sector Court.

Subject to provisions of article 102 of Organic Law No16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994, as amended to date, general elections of persons of integrity for Gacaca Courts shall be organized and conducted by the National Electoral Commission.

A Presidential Order shall determine the necessary guidelines for electing members of the organs of Gacaca Courts.

Article 14 [as modified by article 3 Organic Law No 10/2007]

Members of the benches of Gacaca Courts are Rwandans of integrity elected by the General Assemblies of their Cells of residence.

A person of integrity is any Rwandan meeting the following conditions:

  1. not to have participated in genocide;

  2. to be free from the spirit of sectarianism;

  3. not to have been definitively sentenced to a penalty of at least six (6) months of imprisonment;

  4. to be of high morals and conduct;

  5. to be truthful;

  6. to be honest;

  7. to be characterised by a spirit of speech sharing;

  8. to be free from genocide ideology

Ideology of genocide consists in behaviour, a way of speaking, written documents and any other actions meant to wipe out human beings on the basis of their ethnic group, origin, nationality, region, colour of skin, physical traits, sex, language, religion or political opinions.

Any person of integrity who is at least twenty-one (21) years old and meeting all the conditions required by this organic law, can be elected a member of an organ of a Gacaca Court without any discrimination whatsoever, such as that based on sex, origin, religion, opinion or social position.

Article 15 [as modified by article 4 Organic Law No 28/2006]

Can not be elected member of the seat for a Gacaca Court:

  1. the person exercising a political activity;

  2. a Government official;

  3. the soldier or the policeman who is still in active service;

  4. the career magistrate;

  5. the member of the leadership of a political organization

This ineligibility, however, is waived when the person's resignation from his or her position is accepted .

Leaders referred to in the second point, first paragraph of this article, are the Governor of the Province, Members of the Executive Committee of the City of Kigali, that of the District and those members of the political and administrative committee at the Cell level. (p.174)

Cannot elect or be elected as a person of integrity, anybody who appears on the list of genocide suspects. However, those who committed offences against property only can elect.

Article 16 [as modified by article 4 Organic Law No 10/2007]

Any person elected as a member of the organs for Gacaca Courts shall be replaced for one of the following reasons:

  1. to be absent from the meeting sessions of the organs of Gacaca Courts for three (3) consecutive times without giving any convincing reasons;

  2. to be definitively convicted of a crime punishable by a sentence of at least six (6) months of imprisonment;

  3. to prompt sectarianism

  4. to exercise one of the activities provided for in article 15 of Organic Law n° 16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994 or occupying a position that is likely to impede participation in the sessions of the organs of Gacaca Courts;

  5. to have a disease likely to prevent him or her from participating in the activities of the organs of Gacaca Courts;

  6. to do any act incompatible with the quality of a person of integrity;

  7. resignation for personal reasons;

  8. to be prompted by genocide ideology;

  9. death.

The decision to dismiss a member of the organs of Gacaca Courts who has been absent from their activities for three (3) consecutive times without convincing reasons, has instigated sectarianism or has done an act incompatible with the quality of a person of integrity, shall be made in writing, by the members of the Bench of the Gacaca Court, after consultations with the General Assembly of his or her Cell of residence. The member so dismissed shall be subject to a public caution before the General Assembly and can no longer be elected as a person of integrity.

Other reasons for the replacement referred to in this article, are ascertained by the same organ of the Gacaca Court.

Article 16 [as modified by article 5 Organic Law No 13/2008]

An elected member of any organ of Gacaca Courts shall be replaced due to any of the following reasons:

  1. absence from the Gacaca organ meetings for three (3) consecutive times without giving convincing reasons;

  2. definitive conviction for an offence that carries a term of imprisonment of at least six(6) months;

  3. promoting sectarianism;

  4. revealing details of camera proceedings;

  5. engaging in any of the activities provided for in article 15 of Organic Law n° 16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other (p.175) crimes against humanity, committed between October 1, 1990 and December 31, 1994 as amended to date or engaging in an activity that is likely to impede participation in the activities of Gacaca Court organs;

  6. infection of a disease that is likely to prevent him or her to follow up activities of Gacaca Court organs;

  7. doing any act that is incompatible with qualities of a person with integrity;

  8. voluntary resigning;

  9. being characterised by the genocide ideology;

  10. 10° death.

A decision to dismiss a member of the organs of Gacaca Court who has been absent from his or her activities for three (3) consecutive times without convincing reasons, promoting sectarianism, revealing details of camera proceedings or has done an act incompatible with the qualities of a person of integrity, shall be made in writing by members of the Gacaca Court Bench after consultation with the General Assembly of the Cell. A dismissed member shall be subject to a public caution before the General Assembly and shall no longer be suitable to be elected as a person of integrity.

Other reasons in this article that lead to replacement of a member of Gacaca court organs shall be confirmed by the same organ of the Gacaca Court.

Any dismissed member of the bench of a Gacaca Court for revealing details of camera proceedings shall be prosecuted for that offence by the same court and shall be liable to a term of imprisonment ranging from one (1) to three (3) years.

Prosecution of a former member of the bench of a Gacaca Court for the offence of revealing details of camera proceedings shall be heard in a separate case.

SECTION IV: FUNCTIONING OF THE ORGANS OF GACACA COURTS

Article 17

The General Assembly for the Gacaca Court of the Cell holds an ordinary meeting once a week and an evaluation meeting once every three months and an extraordinary meeting anytime deemed necessary.

It is convened and presided over by the President of the Coordination Committee, on his own initiative or on the request of at least one third (1/3) of the members of the Seat for the Gacaca Court.

When the President has a legitimate reason or refuses to convene the General Assembly, the latter is convened by one of his or her deputies.

Article 18

The General Assembly of the Gacaca Court of the Cell only meets legitimately if at least one hundred members are present.

Article 19

The General Assembly of the Sector shall meet once every three months in its ordinary sessions, and any time in its extraordinary session if need be.

It is convened and presided over by the President of the GACACA Court of Appeal, on its own initiative or on the request of one fourth (1/4) of its members. The President of the Gacaca Court of the Sector becomes the Vice-President. (p.176)

When the President and the Vice-President have legitimate reasons or refuse to convene the General Assembly, the latter is convened by the elder person of integrity on the request of one fourth (1/4) of its members. The present persons of integrity choose, among themselves, the President.

Article 20

The General Assembly of the Sector meets legitimately if at least two thirds (2/3) of its members are present.

Article 21

Hearings for Gacaca Courts are public, except when there is a hearing in camera decided by the Gacaca Court, or on the request of any interested person and decided in a pronounced judgement for reasons of public order or good morals.

The decisions and deliberations of judges are made in secret.

Article 22

In the Gacaca Court of the Cell, the day and time for meetings are fixed by the General Assembly. In other Gacaca Courts, the day and time are determined by the Seat members of the Court and communicated to the population.

Article 23 [as modified by article 5 Organic Law No 10/2007]

The Bench of the Gacaca Court meets legitimately if at least five (5) of its members are present.

When the quorum is not reached due to the absence of some members, the meeting is postponed.

When the quorum is not reached due to an absolute unavailability of the members for various reasons, it is completed by substitutes.

If the quorum is not reached, following objection or competence disclaimer from some of the Bench members, it is completed by their substitutes until the last decision or the closure of hearings.

When all Bench members are objected to or disclaim competence, the assistance of persons of integrity from the nearest Gacaca Court having the same competence is sought until the decision is taken or the closure of hearings. This cannot withhold those persons of integrity from elsewhere to carry on their duties in their usual Court.

The objected Bench, disclaimed Bench or any other person interested in the case, shall immediately inform the National Service in charge of following up, supervising and coordinating the activities of Gacaca Courts to decide on the Gacaca Court from which the persons of integrity can be borrowed.

Article 24

The Seat for a Gacaca Court shall decide by consensus, and failing this, it decides with the absolute majority of its members.

If simple majority is not reached, it is proceeded to a new vote; each member of the Seat for the Gacaca Court having, however, to choose between the two positions which previously obtained more votes.

Article 25

Judgments must be motivated. They are signed or marked with a fingerprint by all members of the Court who have seated in the proceedings and ruled on them.

Article 26

Whenever need be, Gacaca Courts seek assistance from legal experts appointed by the National service in-charge of the follow up, supervision and coordination the activities of Gacaca Courts. (p.177)

Article 27

The Coordination Committee of the Gacaca Court meets as often as necessary, convened by its President, on his or her initiative or on request of at least two (2) of its members.

When the President has a legitimate motive for not summoning the Coordination Committee, the latter is summoned by one of his deputies.

Article 28

To sit legitimately, the Coordination Committee shall bring together at least three (3) of its members.

Article 29

Every Rwandan citizen has the duty to participate in the Gacaca courts activities.

Any person who omits or refuses to testify on what he or she has seen or on what he or she knows, as well as the one who makes a slanderous denunciation, shall be prosecuted by the Gacaca Court which makes the statement of it. He or she incurs a prison sentence from three (3) months to six (6) months. In case of repeat offence, the defendant may incur a prison sentence from six months (6) to one (1) year.

Is considered as refusing3 to testify on what he or she has seen or known, any person who apparently knew something on a given matter denounced by others in his or her presence, without expressing his or her own opinion.

Is considered as refusing to testify:

  1. Anyone who, once summoned to testify before the Court after knowing that he or she is holder of a testimony, refuses to declare by avoiding to speak or deliberately evading the question put to him or her;

  2. Anyone who, once summoned by the Court and does not appear deliberately without reasons, avoiding to be questioned in as much as the summons is clearly notified to him or her.

Is considered as a perjurer,4 anyone who gives a testimony ascertaining that he or she is telling only the truth and holds evidences for that, takes an oath and signs it; but later on it appears to be false and done on purpose.

The perjury is prosecuted during the very hearing of the matter in which the prosecuted person has given the testimony, if it is discovered that the person did it or on purpose.

Article 30

Anyone who exercises pressures, attempts to exercise pressures or threatens the witnesses or the Seat members of the Gacaca Court shall incur a prison sentence from three (3) months to one (1) year. In case of repeat offence, the defendant risks a prison penalty from six (6) months to two (2) years.

Is regarded as an act of exercising pressures on a Court, anything aiming at coercing the Seat into doing against its will, translated into actions, words or a behaviour threatening the Seat, and clearly meaning that if the latter fails to comply with, some of its members or the entire Seat may face dangerous consequences. However, when the pressure is performed, provisions of the penal code of criminal procedure are applied by ordinary courts. (p.178)

Is considered as an attempt to exercise pressures on a Court, any behaviour translated into words or acts, showing that there has been an attempt to coerce a Court into taking a decision in a way or another.

Is regarded as an act of threat on the Court or witnesses, words and actions threatening the witnesses or the Seat members of a Gacaca Court, aiming at winning acceptance for his own wish at all costs.

Are considered as [attempts of]5 threatening the Court or the witnesses, words or actions clearly meant to threaten the witnesses or the Seat members for a Gacaca Court, with the intention of winning acceptance for his or her wish.

Article 31 [as modified by article 6 Organic Law No 10/2007]

Cases tried pursuant to Article 29 of Organic Law n° 16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994 may be opposed and appealed against in accordance with the procedure provided for by this Organic Law.

Nevertheless, cases tried by the Gacaca Court of Appeal at the first resort, are appealed against in the nearest Gacaca Court of Appeal or in another bench of the Gacaca Court of Appeal that tried the case if it is available.

Article 32

The Seat for the Gacaca Court taking cognisance of offences stated in articles 29 and 30, decides all matters ceasing and retires to deliberate on whether it is an offence to be prosecuted according to these articles. When the prosecution of the offence is confirmed, the Seat announces the day of the hearing, notifies it to the defendant, and records it in the notebook of activities before carrying on the Court's activities.

When an offence is committed outside the Court, the plaintiff can file his or her complaint in a written form or during the General Assembly. When he or she declares before the General Assembly, the case is registered and put on the agenda for the next meeting.

In case it is notified to the President, he/she hands it to the secretary who records it in the notebook of activities, mentioning the plaintiff, motive, date of submission and the date of reception from the President. After recording, the President informs the General Assembly, and they decide on the date of examining the complaint.

On the hearing day, the President checks if the required number of persons of integrity, the accused and witnesses are present; their identities are registered, and after, reminds the provisions of the law, states the accusation and gives the floor to the defendant for presenting his or her defence and witnesses.

After their declarations, the President gives the floor to the witnesses for prosecution and any other interested person who wants to say something in the General Assembly, asks the accused to react to it, afterwards the Seat members retire for deliberations. The judgement is recorded in the notebook of activities and bears the signatures of all Seat members.

When the Seat takes an imprisonment decision, it fills out an arrest warrant which is forwarded to the nearest security organ or the representative of the National Service in charge of the follow up Gacaca Courts’ activities for handing it over to the organs charged with arresting and detaining. (p.179)

Detention pending trial is forbidden for the prosecuted persons whose offences are stated in articles 29 and 30 of this organic law, apart from persons referred to in article 30 when they are prosecuted by the public prosecution.

SECTION V: THE DUTIES OF GACACA COURTS

Sub-section 1: The duties for the organs of the Gacaca Court of the Cell

Article 33

The General Assembly of the Gacaca Court of the Cell exercises the following attributions:

  1. 10° Electing Seat members of the Gacaca Court of the Cell and their deputies;

  2. 20° Attending the activities of the Gacaca Court of the cell for the non-members of the seat and take the floor only upon request;

  3. 30° Assisting the seat of Gacaca Court in the establishment of a list of persons:

    1. a) who reside in the cell;

    2. b) who resided in the cell before the genocide, locations they kept shifting to and routes they took;

    3. c) killed in their Cell of residence;

    4. d) killed outside their cell of residence;

    5. e) killed in the cell while they were not residing in it;

    6. f) victimized and their damaged property;

    7. g) alleged authors of the offences referred to in this organic law.

  4. Presenting evidences or testimonies on all persons suspected of having committed the crime of genocide and on others who took part;

  5. Examining and adopting activity report established by the Gacaca Court.

All residents of the Cell shall tell the facts of events which took place, especially in their home villages and give evidence, denounce the authors and identify the victims.

Article 34

The Seat for the Gacaca Court of the Cell exercises the following attributions:

  1. With the participation of the General Assembly, to make up a list of persons:

    1. a. who reside in the cell;

    2. b. who were residing in the Cell before the genocide, locations where they kept shifting to and routes they took;

    3. c. killed in their Cell of residence;

    4. d. killed outside their Cell of residence;

    5. e. killed in the cell while they were not residing in it;

    6. f. victimized and their damaged property;

    7. g. who took part in the offences referred to in this organic law.

  2. to receive confessions, guilt plea, repentance and apologies from the persons who participated in genocide; (p.180)

  3. to bring together the files forwarded by the Public Prosecution;

  4. to receive evidences and testimonies and other information concerning how genocide was planned and put into execution;

  5. to investigate testimonies;

  6. to categorize the accused as per the provisions of this organic law;

  7. to put on trial and judge cases for the accused whose crimes classify them in the third category;

  8. to give a ruling on objection to Seat members for the Gacaca Court of the Cell;

  9. to forward to the Gacaca Court of the Sector, the files of the defendants classified in the second category;

  10. 10° to forward to the Public Prosecution, the files for the defendants classified in the first category;

  11. 11° to elect members of the Coordination Committee.

A victim referred to in point 10–f is anybody killed,6 hunted to be killed but survived, suffered acts of torture against his or her sexual parts, suffered rape, injured or victim of any other form of harassment, plundered, and whose house and property were destroyed because of his or her ethnic background or opinion against the genocide ideology.

Sub-section 2: The duties for the Gacaca Court of the Sector and the Gacaca Court of Appeal

Article 35

The general Assembly for the Sector has the following attributions:

  1. to supervise the functioning of all Gacaca Courts in the Sector, without meddling in their ways of conducting proceedings;

  2. to replace persons of integrity for the Gacaca Court of the Sector and the Gacaca Court of Appeal;

  3. to receive and solve problems of the functioning of Gacaca Courts, not related to proceedings;

  4. to report to the National Service in charge of the following up, supervision and coordination of the activities of Gacaca Courts, and provide advice to it.

Article 36

The Seat for the Gacaca Court of the Sector exercises the following remit:

  1. making investigations, if necessary, on testimonies given;

  2. receiving confessions, guilt plea, repentance and apologies from genocide perpetrators;

  3. taking decisions relating to objections to the Seat members of the Gacaca Court;

  4. putting on trial and ruling on cases falling in its competence according to this organic law, after making sure that the accused forwarded to it, have been categorized in conformity with the alleged offences, and those found in the first category are forwarded to the Public Prosecution;

  5. examining appeals against judgments passed by Gacaca Court of the Cell; (p.181)

  6. electing members of the Coordination Committee.

Article 37

The Seat for the Gacaca Court of Appeal carries out the following attributions:

  1. 1 making investigations, if necessary, on testimonies given;

  2. 2 taking decisions relating to objections to the Seat members of the Gacaca Court;

  3. 3 putting on trial and ruling on cases falling in its competence according to this organic law, after making sure that the accused forwarded to it have been categorized in conformity with their offences, and those found in the first category, are forwarded to the Public Prosecution;

  4. 4 examining appeals against judgements passed by the Gacaca Court of the Sector;

  5. electing members of the Coordination Committee.

Article 38

As regards offences relating to rape or acts of torture against sexual parts, the victim chooses among the Seat members for the Gacaca Court of the Cell, one or more to whom she submits her complaint or does it in writing. In case of mistrust in the Seat members, she submits it to the organs of investigations or the Public Prosecutor.

In case of death or incapacity of the victim, the complaint shall be secretly lodged by any interested party in the manner provided for by the paragraph one of this article.

The person of integrity entrusted with such a complaint, forwards it secretly to the Public Prosecution for further investigations.

It is prohibited to publicly confess such an offence. No body is permitted to publicly sue another party. All formalities of the proceedings of that offence shall be conducted in camera.

Article 38 [as modified by article 6 Organic Law No 13/2008]

A victim of the offence of rape or sexual torture may submit her or his complaint to the Sector Gacaca Court where the offence was committed from, the judicial police or the public prosecution.

In case the victim to any other above offences is dead or is incapacitated to lodge such a complaint, a concerned party may secretly lodge such a complaint in a manner provided in proceeding paragraph.

It is prohibited to publicly confess commission of any of the above crimes. No person shall be permitted to initiate proceedings in respect to any of the above offences against another in public. All formal proceedings in respect to the above offences shall be held in camera.

Delegates of the National Service in charge of the follow up, supervision and coordination of the activities of Gacaca Courts, security officers, and Trauma Counsellors may follow up a matter being tried in camera.

CHAPTER TWO: THE COMPETENCE OF GACACA COURTS

Article 39

Gacaca Courts have competences similar to those of ordinary courts, to try the accused persons, on the basis of testimonies against or for, and other evidences that may be provided.

They may in particular:

  1. Summon any person to appear in a trial; (p.182)

  2. Order and carry out a search of or to the defendant's.7 This search must, however, respect the defendant's private property and basic human rights;

  3. Take temporary protective measures against the property of those accused of genocide crimes;

  4. Pronounce sentences and order the convicted person to compensate;

  5. Order the withdrawal of the distrait for the acquitted person's property;

  6. Prosecute and punish trouble makers in the court;

  7. Summon, if necessary, the Public Prosecution to give explanatory information on files it has investigated on;

  8. Issue summons to the alleged authors of offences and order detention or release on parole, if necessary.

Article 40

The National Service in charge of the follow up, supervision and coordination of the activities of Gacaca Courts, determines, on its own initiative or on the request of the Seat for the Gacaca Court concerned, or any person suffering encroachment, by means of regulations, the ways to rule on disputes relating to competences of Gacaca Courts and follows up its implementation.

SECTION I: RATIONAE MATERIAE

Sub-section 1: The Gacaca Court of the Cell

Article 41 [as modified by article 7 Organic Law No 10/2007]

The Gacaca Court of Cell only deals, at the first and last resort, with offences relating to property. It also deals with the objection against the sentence it has pronounced in the absence of the parties.

Gacaca Court of Cell classifies into categories accused persons suspected of having committed offences provided for in articles one and 51 of Organic Law n°16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994, as modified and complemented to date.

Sub-section 2: The Gacaca Court of the Sector

Article 42 [as modified by article 8 Organic Law No 10/2007]

The Gacaca Court of Sector deals at first resort, with defendants whose offences classify them into the second category and opposition made against sentences pronounced in the absence of the parties.

It also deals with the appeal lodged against judgements pronounced for offences provided for in articles 29 and 30 of Organic Law no16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994 and other decisions taken by the Gacaca Court of Cell. (p.183)

Article 42 [as modified by article 7 Organic Law No 13/2008]

The Gacaca Sector Courts shall hear at the first level cases of persons who committed offences that put them in the first category, point 3, 4 and 5 and in the second category as stipulated in article 9 of this law [article 51] together with reviewing 8 of cases that were determined in absence of an accused .

It shall also determine appeals emanating from offences in article 29 and 30 of Organic Law No16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994 as amended to date and other decisions taken by the Gacaca Court of the Cell.

Sub-section 3: The Gacaca Court of Appeal

Article 43 [as modified by article 9 Organic Law No 10/2007]

The Gacaca Court of Appeal deals with appeal lodged against sentences pronounced at first resort by the Gacaca Court of the Sector.

In addition, it deals with objection lodged against sentences pronounced in the absence of the parties.

SECTION TWO: RATIONAE LOCI

Article 44 [as modified by article 10 Organic Law No 10/2007]

The Gacaca Court of the area where an offence was committed is the one that is competent to hear it.

Persons who committed offences in different places are tried before competent Courts in accordance with provisions stated in the first paragraph of this article.

However, if the author of the crime cannot be prosecuted by the Gacaca court of where the crime was committed or when it was committed beyond the borders of Rwanda, the Gacaca Court of the area of his/her residence or domicile may prosecute him/her.

Article 45

When it appears in the file to communicate to the Gacaca Court in conformity with article 47 of this organic law, that the defendant has committed offences in different places, the Public Prosecution forwards it to each Gacaca Court of the Cell of where crimes were committed.

CHAPTER THREE: RELATIONSHIP BETWEEN GACACA COURTS AND OTHER INSTITUTIONS

SECTION I: RELATIONSHIP BETWEEN THE PUBLIC PROSECUTION AND GACACA COURTS

Article 46

The organs of the Public Prosecution shall proceed to their mission of receiving denunciations and complaints, and investigating on offences referred to in this organic law. (p.184)

However, before beginning such investigation, they will have to make sure that the Gacaca Court has not tried or has not begun to examine these cases so as to avoid unnecessary task.

The files investigated by the Public Prosecution in conformity with the first paragraph of this article, are forwarded to the competent Gacaca Court of the Cell.

Article 47

The files investigated by the Public prosecution, but which were not yet forwarded to competent Courts by March 15, [2001] shall be forwarded to the Gacaca Court of the area where each crime was committed for the categorization of defendants.

The Public prosecution carry on communicating to Gacaca Courts of the Cell or to the Court called to recognisance of the case, evidences collected against prosecuted persons in the files it has investigated.

When the Gacaca Court of the Cell which has made the categorization, has already forwarded the file to the competent Court to hear the case before it receives the prosecution file, the concerned Public Prosecution forwards the evidences collected to the Gacaca Court of the Cell and its copy to the competent Gacaca Court which has competence to hear it.

In case it is clear that in the file that the accused committed the offences of rape or sex related crimes, the prosecution shall not refer the file to the Gacaca Court of the Cell.

Article 47 [as modified by article 8 Organic Law No 13/2008]

The organs of the prosecution department shall continue liaising and facilitating Gacaca Courts with any evidence got in the course of investigations about accused persons.

Article 48

The Prosecutor General of the Republic supervises the organs of the Public Prosecution in proceedings referred to in this organic law.

SECTION II: RELATIONSHIP BETWEEN ADMINISTRATIVE ORGANS AND GACACA COURTS

Article 49

Leaders of administrative organs in which Gacaca Court function shall provide them with premises in which they shall perform their duties, as well as sensitize the population for their active participation. They exercise a steady monitoring of the functioning of Gacaca Courts and provide them with necessary materials, in collaboration with the National Service in charge of follow up, supervision and coordination of the activities of Gacaca Courts.

SECTION III: RELATIONSHIP BETWEEN THE GACACA COURTS AND THE NATIONAL SERVICE CHARGED WITH THE FOLLOW UP, SUPERVISION AND COORDINATION OF ACTIVITIES OF GACACA COURTS

Article 50

The National Service in charge of follow up, supervision and coordination of the activities of Gacaca Courts, follows up, supervises and coordinates Gacaca Courts’ activities in the country. (p.185)

It also issues rules and regulations relating to the smooth running of Gacaca Courts, as well as the conduct of persons of integrity, without prejudice to the Gacaca Courts’ ways of trying.

TITLE III: PROSECUTION OF OFFENCES AND PROCEEDINGS

CHAPTER ONE: PROSECUTED PERSONS

Article 51 [as modified by article 11 Organic Law No 10/2007]

Following acts of participation in offences referred to in article one of Organic Law n°16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994, the accused may be classified in one of the following categories:

First Category:

  1. The person whose criminal acts or criminal participation place among planners, organisers, incitators, supervisors and ringleaders of the crime of genocide or crimes against humanity, together with his or her accomplices;

  2. the person who, at that time, was in the organs of leadership, at national, prefecture, sub-prefecture and commune levels, leaders of political parties, members of the high command of the army and gendarmerie, of communal police, leaders of religious denominations, or illegal militia groups and who committed those offences or encouraged other people to commit them, together with his or her accomplices;

  3. the person who committed acts of rape or sexual torture, together with his or her accomplices;

  4. The Prosecutor General of the Republic shall publish, at least twice a year, the list of persons classified in the first category, forwarded to him or her by Gacaca Courts of the Cell.

Second Category:

  1. the well known murderer who distinguished himself or herself in the area where he or she lived or wherever he or she passed, because of the zeal which characterized him or her in the killings or excessive wickedness with which they were carried out, together with his or her accomplices;

  2. the person who committed acts of torture against others, even though they did not result into death, together with his or her accomplices;

  3. the person who committed dehumanizing acts on the dead body, together with his or her accomplices.

  4. the person whose criminal acts or criminal participation place among the killers or authors of serious attacks against others, causing death, together with his or her accomplices;

  5. the person who injured or committed other acts of serious attacks, with intention to kill them, but who did not attain his or her objective, together with his or her accomplices;

  6. the person who committed or participated in criminal acts against persons, without any intention of killing them, together with his or her accomplices. (p.186)

Third Category:

The person who only committed offences against property. However, if the author of the offence and the victim have agreed on an amicable settlement on their own initiative, or before the public authority or witnesses, before this organic law came into force, he or she cannot be prosecuted.

Article 51 [as modified by article 9 Organic Law No 13/2008]

Commission of offences in article 1 of Organic Law No16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994 as amended to date, an accused may be put in one of the following categories:

First Category:

  1. any person who committed or was an accomplice in the commission of an offence that puts him or her in the category of planners or organisers of the genocide or crimes against humanity.

  2. any person who was at a national leadership level and that of the prefecture level: public administration, political parties, army, gendarmerie, religious denominations or in militia group, and committed crimes of genocide or crimes against humanity or encouraged others to participate in such crimes, together with his or her accomplice;

  3. any person who committed or was an accomplice in the commission of an offence that puts him or her among the category of people who incited, supervised and ringleaders of the genocide or crimes against humanity;

  4. any person who was at the leadership level at the Sub-Prefecture and Commune: public administration, political parties, army, gendarmerie, communal police, religious denominations or in militia, who committed any crimes of genocide or other crimes against humanity or encouraged others to commit similar offences, together with his or her accomplice;

  5. any person who committed the offence of rape or sexual torture, together with his or her accomplice.

The Prosecutor General of the Republic shall publish at least twice a year, a list of offenders in the first category forwarded by the Gacaca Cell Courts.

Second category:

  1. a notorious murderer who distinguished himself or herself in his or her location or wherever he or she passed due to the zeal and cruelty employed, together with his or her accomplice;

  2. any person who tortured another even though such torture did not result into death, together with his or her accomplice;

  3. any person who committed a dehumanising act on a dead body, together with his or her accomplice;

  4. any person who committed or is an accomplice in the commission of an offence that puts him or her on the list of people who killed or attacked others resulting into death, together with his or her accomplice; (p.187)

  5. any person who injured or attacked another with the intention to kill but such intention was not fulfilled, together with his or her accomplice;

  6. any person who committed or aided another to commit an offence against another without intention to kill, together with his or her accomplice.

Third category:

A person who only committed an offence related to property. However, when the offender and the victim come to a settlement by themselves, settle the matter before the authorities or before the witnesses before commencement of this law, the offender shall not be prosecuted.

Article 52

The person in the position of authority at the level of the Sector and Cell, at the time of genocide, are classified in the category corresponding to offences they have committed, but their positions of leadership exposes them to the most severe penalty within the same category.

Article 53

For the implementation of this organic law, the accomplice is the person who has, by any means, provided assistance to commit offences with persons referred to in article 51 of this organic law.

The fact that any of the acts aimed at by this organic law has been committed by a subordinate, does not free his or her superior from his or her criminal responsibility if he or she knew or could have known that his or her subordinate was getting ready to commit this act or had done it, and that the superior has not taken necessary and reasonable measures to punish the authors or prevent that the mentioned act be not committed when he or she had means.

CHAPTER TWO: PROCEDURE OF CONFESSIONS, GUILT PLEA, REPENTANCE AND APOLOGIES

SECTION I: ACCEPTANCE OF CONFESSIONS, GUILT PLEA, REPENTANCE AND APOLOGIES AND CONDITIONS REQUIRED

Article 54

Any person who has committed offences aimed at in article one of this organic law, has right to have recourse to the procedure of confessions, guilt plea, repentance and apologies.

Apologies shall be made publicly to the victims in case they are still alive and to the Rwandan Society.

To be accepted as confessions, guilt plea, repentance and apologies, the defendant must:

  1. give a detailed description of the confessed offence, how he or she carried it out and where, when he or she committed it, witnesses to the facts, persons victimized and where he or she threw their dead bodies and damage caused;

  2. reveal the co-authors, accomplices and any other information useful to the exercise of the public action;

  3. apologise for the offences that he or she has committed. (p.188)

Article 55 [repealed by article 10 Organic Law No 13/2008]

Genocide perpetrators coming under the first category who have had recourse to the procedure of confessions, guilt plea, repentance and apologies for their offences before their names appear on the list drawn up by Gacaca Court of the Cell, shall enjoy commutation of penalties in the way provided for by this organic law.

Article 56

Shall enjoy commutation of penalties in the way provided for by this organic law, persons in the 2nd category who:

  1. confesses, pleads guilty, repents, apologises before the Gacaca Court of the Cell draws up a list of authors of genocide;

  2. already appearing on this list, have had recourse to the procedure of confessions, guilt plea, repentence and apologies after publication of the list of authors of genocide.

Article 56 [as modified by article 11 Organic Law No 13/2008]

A punishment for an offender in the first and second category may be commuted in accordance with this law and this includes:

  1. any person who confessed, pleaded guilty, repented and asked for forgiveness before the Gacaca Cell Court finalises to prepare the list of offenders that had a hand in the genocide;

  2. any person refereed to above who confessed, pleaded guilty, repented and asked for forgiveness after the list was prepared.

Article 57

If it is found out subsequently offences that a person has not confessed, he or she is prosecuted, at any time, for these offences and shall be classified in the category in which the committed offences place him or her, and is punishable by the maximum penalty provided for this category.

SECTION II: PROCEDURE OF CONFESSIONS, GUILT PLEA, REPENTANCE AND APOLOGIES

Article 58 [as modified by article 12 Organic Law No 13/2008]

A confession, guilty plea, repentance and forgiveness shall be done before a dully constituted bench, a judicial police officer or a public prosecutor investigating the case in accordance with article 46 of Organic Law No16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994 as amended to date.

The Bench, the Judicial Police Officer or the Public Prosecutor in charge of investigating the case shall inform the accused of his or her rights and benefits that emanate from a confession, guilty plea, repentance and request for forgiveness.

However, if a person confesses for the first time before an appellate court or when the case is being reviewed, the offender shall not enjoy commutation of punishment because of a delayed confession.

Sub-section 1: Procedure of confessions, guilt plea, repentance and apologies before the officer of the criminal investigation or before the officer of the public prosecution (p.189)

Article 59

For files which are not yet forwarded to the Gacaca Courts of the Cells, the criminal investigation Department or the public prosecution receives the confessions, guilt plea, repentance and apologies. The conclusions from confessions, guilt plea, repentance and apologies shall be received and transcribed by an Officer of the criminal investigation or by the Public Prosecutor. If confessions are forwarded in writing, the Officer of the criminal investigation or the Public Prosecution asks the petitioner to endorse it.

The petitioner signs or marks with a fingerprint the minute containing the confessions, guilt plea, repentance and apologies and confirms what has been approved, as well as the minute containing confessions, if there is any, before the Officer for the criminal investigation or the Public Prosecutor who also endorses them.

Article 59 [as modified by article 13 Organic Law No 13/2008]

Judicial Police or the Public Prosecution shall receive confessions, guilty pleas, repentance and requests for forgiveness for the accused persons submitted to them. What is stated in the confession, guilty plea, repentance and request for forgiveness shall be recorded down by a judicial police officer or by a public prosecutor. If the submission is written, the judicial police officer or the public prosecutor shall request the petitioner to endorse it.

A petitioner shall sign or mark with a finger print the minute containing his or her confession, guilty plea, repentance and request for forgiveness or confirm what has been admitted as well as signing or mark with a finger print the minute containing the confession before a judicial police officer or a public prosecutor who shall also endorse it.

Article 60

If the Public Prosecutor finds that the confessions, guilt plea, repentance and apologies are in conformity with the required conditions, he or she concludes the file by establishing a note of investigation containing the petitioner's declarations and forwards it to the competent Gacaca Court of the Cell.

In case he or she finds that the confessions, guilt plea, repentance and apologies do not meet conditions required, or that the investigation has revealed that the petitioner's confessions, guilt plea, repentance and apologies are false, he or she states in an explanatory note the elements missing, concludes the file, and forwards it to the competent Gacaca Court of the Cell.

The Gacaca Court of the Cell, after checking if the confessions, guilt plea, repentance and apologies done before the Officer for the criminal investigation or the Public Prosecutor are complete, accepts or rejects them.

Article 60 [as modified by article 14 Organic Law No 13/2008]

If a Public Prosecutor finds that a confession, guilty plea, repentance and request for forgiveness is in conformity with the required conditions, the public prosecutor shall prepare a minute containing what the accused stated, conclude the file and submit the case file to a competent court.

If a Public Prosecutor finds that a confession, guilty plea, repentance and request for forgiveness does not meet the required conditions, or that the investigations show that the petitioner who confessed, pleaded guilty, repented and asked for forgiveness did not tell the truth, the public prosecutor shall prepare an explanatory note stating the missing elements, conclude the file and submit the case file to a competent court. (p.190)

Article 61

The minutes containing confessions, guilt plea, repentance and apologies established by the Public Prosecutor[, ] the officer for the criminal investigation or in conformity with articles 59 and 60 of this organic law, [are] forwarded to the Gacaca Court of the Cell of where the offence was committed, and read publicly, in case petitioner has reason beyond control preventing him or her to appear and apologise in public.

Article 61 [as modified by article 15 Organic Law No 13/2008]

A minute containing a confession, guilty plea, repentance and request for forgiveness prepared by a public prosecutor or a judicial police officer in accordance with article 13 and 14 of this law [articles 59, 60], shall be submitted to a competent court and shall be read in public if for reasons beyond control, the petitioner is not able to attend and ask for forgiveness in public.

Sub-section 2: Procedure of confessions, guilt plea, repentance and apologies before Gacaca Courts

Article 62 [as modified by article 16 Organic Law No 13/2008]

Any person who committed the offence of genocide and other crimes against humanity committed between October 1, 1990 and December 31, 1994, may confess, plead guilty, repent and ask for forgiveness before a dully constituted competent bench.

Without prejudice to the second paragraph of article 54 of Organic Law no 16/2004, of 19/6/2004 establishing the organisation, competence and functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994 as amended to date, an offender may upon request confess, plead guilty, repent and ask for forgiveness orally or in written form putting his or her signature or fingerprint.

Article 63

The confessions, guilt plea, repentance and apologies are subject to the minute established by the secretary of the Gacaca Court and signed or marked with a fingerprint by the defendant and members of the Court Seat.

The Seat for the Gacaca Court checks if the confessions, guilt plea, repentance and apologies fulfils conditions required and if the petitioner's declarations are true.

CHAPTER THREE: HEARING AND JUDGEMENT

SECTION I: HEARING AND JUDGEMENT BEFORE GACACA COURTS OF THE SECTOR AND GACACA COURTS OF APPEAL

Article 64

In case of confirmed confessions, guilt plea, repentance and apologies, the hearing proceeds as follows:

  1. the President of the session calls the case and invites defendants to the bar:

  2. each defendant establishes his or her identity;

  3. the President of the session requests the plaintiffs identity;

  4. the Court secretary makes known to the defendant every charge against him or her, and reads the minute of the defendant's confessions; (p.191)

  5. the President of the session asks each defendant to comment on accusations;

  6. any interested person takes the floor to testify in favour or against the defendant; [the defendant] responds to questions put to him or her. Every person taking the floor to testify on which he or she knows or witnessed, takes oath to tell the truth by raising his or her right arm, saying: “I take God as my witness to tell the truth”;

  7. the plaintiff describes all the offences suffered and how they were committed, if he or she has knowledge of them;

  8. if the defendant is present, responds to the plaintiff's declarations;

  9. the Seat for the Gacaca Court establishes a list of the victims and offences each of them suffered, the defendant is given floor to respond;

  10. 10° the Court secretary reads the statement of hearing, the Court checks the conformity of its content with the declarations and, if need be, the statement of hearing is corrected;

  11. 11° the Seat asks the plaintiff and the defendant if they have additional information;

  12. 12° the parties to the trial and all the others who took floor during the hearing, together with members of the Seat put their signatures or fingerprints on the statement hearing containing the defendant's confessions;

  13. 13° the hearing is declared closed, unless the Seat deems it necessary to postpone it so as to check certain issues.

Article 65

For files which do not contain confessions, guilt plea repentance and apologies or when the Gacaca Court has rejected them, the hearing proceeds as follows:

  1. the President of the session calls the case and invites defendants to the bar;

  2. each defendant establishes his or her identity;

  3. the President asks the plaintiff his or her identity;

  4. the secretary of the court makes known to the defendant every charge against him or her;

  5. the President of the Gacaca Court reads out to the defendants, articles 54, 55 and 57 of this organic law so that they understand the confession, guilt plea, repentance and apologies procedure, and asks them if they want to use it. The interested persons in confessing, guilt pleading, repenting and apologizing, are asked to do it there and then, the hearing proceeds in the order provided for, for those who have confessed, pleaded guilty, repented and apologized.

For those who do not want to confess, plead guilty, repent and apologise, the hearing proceeds in the following way:

  1. a) the President of the session gives the summary of the nature of the case and reads the provided evidences establishing the defendant's guilt;

  2. b) the President of the session asks each defendant to give his or her defence;

  3. c) the Court hears witnesses for or against prosecuted persons, if need be, hears evidences from the Public Prosecution if it is summoned to the trial. Every person taking the floor to testify on what he or she knows or witnessed swears to tell the truth by raising the right hand up and saying: “I take God as my witness to tell the truth.”

  4. d) the defendant gives his or her defence; (p.192)

  5. e) any interested person, takes the floor and the defendant answers to questions put to him or her;

  6. f) the Seat of the Gacaca Court establishes a list of the victims and offences that each of them suffered; the defendant is given floor to respond;

  7. g) the secretary of the Court reads the statement of hearing; the Court checks the conformity of its content with the declarations and, if need be, the statement of hearing is corrected;

  8. h) the Seat asks the plaintiff and the defendant if they have additional information;

  9. i) the parties to the trial and all the others who took floor during the hearing, together with the members of the Seat, put their signatures or fingerprints on the statement of hearing;

  10. j) the hearing is declared closed, unless the Seat deems it necessary to postpone it so as to check certain issues.

Article 66

For files of defendants with neither known address nor residence in Rwanda referred to in article 98 of this organic law, the hearing shall proceed as follows:

  1. the President of the session calls the case and invites the defendants to the bar.

  2. if he or she finds that they are present, the hearing proceeds in conformity with article 65 of this organic law. In case some are present and others are absent, those who are present shall be judged in accordance with the provisions of article 65 of this organic law.

In reference to the absentees as well as those who did not appear, the hearing shall proceed in the following manner:

  1. a. the President of the session asks the plaintiff's identity;

  2. b. the secretary of the court makes known to the defendant every charge against him or her;

  3. c. the President of the session gives the summary of the nature of the case, reads out provided evidences establishing the defendant's guilt;

  4. d. the Court hears witnesses and, if necessary, hears the Public prosecution's evidences when it is summoned to the trial;

  5. e. any interested person takes the floor on request;

  6. f. the plaintiff describes all offences suffered and how they were omitted;

  7. g. the Seat of the Gacaca Court establishes a list of the victims and offences suffered by each one of them;

  8. h. the secretary of the Court reads the statement of hearing; the Seat checks the conformity of its content with the declarations and, if need be, the statement of hearing is corrected;

  9. i. the Seat of the Gacaca Court asks the plaintiff if he or she has anything to add to the hearing;

  10. j. the parties to the trial and members of the Seat put their signatures or fingerprints on the statement of hearing;

  11. k. the hearing is declared closed, unless the Seat deems it necessary to postpone it so as to check certain issues. (p.193)

As regards pronouncement, notification, appeal and objection to the judgements passed within such circumstances, provisions for judgements by default apply.

Article 67

Any judgement passed by the Gacaca Court of the Sector or the Gacaca Court of appeal mentions the following;

  1. the Court that has passed it;

  2. the names of Seat members who gave rulings;

  3. the identity of the parties to the trial;

  4. charges against the defendant;

  5. the facts presented by the parties;

  6. the motives of judgement;

  7. the offence of which the defendant is found guilty;

  8. the penalties pronounced;

  9. the identity of the victims and the inventory of suffered offences;

  10. 10° the presence or absence of the parties;

  11. 11° if the hearings and the pronouncement of judgements were made public;

  12. 12° venue and date for judgement;

  13. 13° the provisions of this organic law which have been applied;

  14. 14° the legal period for appeal.

SECTION II: HEARING AND JUDGEMENT BEFORE THE GACACA COURT OF THE CELL

Article 68

For files relating to the offences against property, the hearing proceeds as follows:

  1. the President of the session states the household concerned with the case;

  2. the President of the session recalls the household's property damaged and known, on basis of the list of victims and damaged property;

  3. the President of the session gives the floor to any person who has anything to add to the information on the list;

  4. the seat for the Gacaca Court adopts the inventory of damaged property;

  5. the President of the session reads the names of the defendants having damaged the household property, basing on the list of defendants;

  6. each defendant presents his or her identity;

  7. the President of the session requests the representative of the suffered household or any person interested to give his or her identity;

  8. the secretary of the Court states each of the damaged property and their authors;

  9. the President of the session asks each defendant to react to the accusations and present his or her defence; (p.194)

  10. 10° the President of the session asks the household representative or any person who so wishes to react to the defendants’ declarations;

  11. 11° the Seat for the Gacaca Court adopts the list of the victims, damaged property and the authors, each defendant is given floor to react;

  12. 12° the Seat of the Court explains to the convicted defendants, modalities for granting the compensation provided for by this organic law, by asking each defendant to decide on his or her means and the period of payment, in case of conviction;

  13. 13° the secretary of the Court reads the statement of hearing; the Seat checks the conformity of its content with the declarations and, if need be, the statement of hearing is corrected;

  14. 14° the Seat asks the plaintiff and the defendant whether they have anything to add to the hearing;

  15. 15° the parties to the trial and the Seat members put their signatures or fingerprints on the statement of hearing;

  16. 16° the hearing is declared closed, unless the Seat deems it necessary to postpone it so as to check certain issues.

Article 69

The judgement for offences against property passed by the Gacaca Court of the Cell shall mention the following:

  1. the Court that has passed it;

  2. the names of the Seat members who gave rulings;

  3. the identity of the parties to the trial;

  4. the damaged property requiring reparation;

  5. the facts presented by the parties;

  6. the motives of judgement;

  7. the damaged property which must be repaired and the defendants responsible;

  8. the identity of the victims and the inventory of their damaged property;

  9. the modalities and the period for reparation;

  10. 10° the presence or absence of the parties;

  11. 11° if the hearings and the pronouncement of judgement were made public;

  12. 12° venue and date for judgement;

  13. 13° the provisions of this organic law which have been applied.

Article 70

Once the hearings are closed, or when deemed necessary to take any decision, the Seat of the Gacaca Court retires for deliberations and takes decision on the same day the following day.

The judgement or the decision taken are pronounced publicly in the meeting or in the next hearing, before starting that meeting or hearing. (p.195)

SECTION III: MAINTAINANCE OF LAW AND ORDER DURING THE HEARINGS

Article 71

The hearing shall be carried out in calmness. Any person who takes the floor, must be characterized by politeness in speech and behaviour before the persons of integrity, parties, witnesses and the audience at large.

The President of the session can interrupt any person not conforming to the speech taking modality without bawling or rushing him or her in a way or another.

If necessary, the President of session can give a warning to the troublemakers in the Court, eject or put him or her in detention for a period not exceeding forty eight (48) hours, according to the gravity of the offence. When the committed offence is a criminal offence, the Seat forwards the case to the security organs, for prosecution basing on the ordinary laws.

CHAPTER FOUR: PENALTIES

Article 72 [as modified by article 17 Organic Law No 13/2008]

Offender in the first category:

  1. who refused to confess, plead guilty, repent and ask for forgiveness or whose confession, guilty plea, repentance or request for forgiveness is rejected shall be liable to life imprisonment with special provisions;

  2. who confessed, pleaded guilty, repented and asked for forgiveness after being put on the list of offenders shall be liable to a term of imprisonment ranging from twentyfive (25) to thirty (30) years of imprisonment;

  3. who confessed, pleaded guilty, repented and asked for forgiveness and such confession, guilty plea, repentance and request for forgiveness is acceptable before being put on the list of offenders shall be liable to a term of imprisonment ranging from twenty (20) to twentyfour (24) years of imprisonment.

Article 73 [as modified by article 14 Organic Law No 10/2007]

Defendants falling within the second category referred to in the first, second and third paragraph of article 11 of this organic law [article 51], who:

  1. refused to confess, plead guilty, repent and apologise, or whose confessions, guilt plea, repentance and apologies have been rejected, incur a prison sentence of thirty (30) years or life imprisonment

  2. confessed, pleaded guilty, repented and apologised after being included on the list of the accused and whose confession, guilt plea, repentance and apologises have been accepted, incur a prison sentence ranging from twentyfive (25) to twenty-nine (29) years, but:

    1. a) they serve a third (1/3) of the sentence in custody;

    2. b) a sixth (1/6) of the sentence is suspended;

    3. c) half (1/2) of the sentence is commuted into community service. (p.196)

  3. confessed, pleaded guilty, repented and apologised before being included on the list of the accused, incur a prison sentence ranging from twenty (20) to twenty-four (24) years, but:

    • a) they serve a sixth (1/6) of the sentence in custody;

  4. b) a third (1/3) of the sentence is suspended;

  5. c) half (1/2) of the sentence is commuted into community service.

Defendants falling within the second (2nd) category referred to in the fourth (4th) and fifth (5th) paragraph of article 11 of this organic law [article 51], who:

  1. refused to confess, plead guilty, repent and apologise, or whose confessions, guilt plea, repentance and apologies have been rejected, incur a prison sentence ranging from fifteen (15) to nineteen (19) years;

  2. confessed, pleaded guilty, repented and apologised after being included on the list of the accused and whose confession, guilt plea, repentance and apologies have been accepted, incur a prison sentence ranging from twelve (12) to fourteen (14) years, but:

    1. a) they serve a third (1/3) of the sentence in custody;

    2. b) a sixth (1/6) of the sentence is suspended;

    3. c) half (1/2) of the sentence is commuted into community service;

  3. confessed, pleaded guilty, repented and apologised before being included on the list of the accused and whose confessions, guilt plea, repentance and apologies have been accepted, incur a prison sentence ranging from eight (8) to eleven (11) years, but:

    1. a) they serve a sixth (1/6) of the sentence in custody;

    2. b) a third (1/3) of the sentence is suspended;

    3. c) half (1/2) of the sentence is commuted into community service

Defendants falling within the second category referred to in the sixth (6th) paragraph, who:

  1. refused to confess, plead guilty, repent and apologise, or whose confessions, guilt plea, repentance and apologies have been rejected, incur a prison sentence ranging from five (5) to seven (7) years, but:

    1. a) they serve a third (1/3) of the sentence in custody;

    2. b) a sixth (1/6) of the sentence is suspended;

    3. c) half (1/2) of the sentence is commuted into community service;

  2. confessed, pleaded guilty, repented and apologised after being included on the list of the accused and whose confession, guilt plea, repentance and apologies have been accepted, incur a prison sentence ranging from three (3) to four (4) years, but:

    1. a) they serve a third (1/3) of the sentence in custody;

    2. b) a sixth (1/6) of the sentence is suspended;

    3. c) half of the sentence is commuted into community service;

  3. confessed, pleaded guilty, repented and apologised before being included on the list of the accused and whose confessions, guilt plea, repentance and apologies have been accepted, incur a prison sentence ranging from one (1) to two (2) years, but; (p.197)

    1. a) a sixth (1/6) of the sentence in custody;

    2. b) a (1/3) of the sentence is suspended;

    3. c) half (1/2) of the sentence is commuted into community service.

Article 74

Should a person who is serving community services sentence commit another crime, the period he or she has already served becomes void and he or she shall serve the remaining prison sentence in custody as well as be prosecuted for the new crime he or she committed.

Article 74 [as modified by article 18 Organic Law No 13/2008]

If a person is serving community service sentence or is on a suspended sentence and is convicted of another crime, the period the offender had served on community service or on suspended sentence, shall become void and the offender shall serve the remaining sentence in prison and shall also serve the punishment for the new committed crime.

However, when a person is not found guilty of the new offence, he/she shall be released to serve the remaining period of community service sentence or suspended sentence taking into consideration the time spent in prison.

Article 75

Defendants who committed offences relating to property, are only sentenced to the civil reparation for what they have damaged.

Article 76 [as modified by article 15 Organic Law No 10/2007]

Persons convicted of the crime of genocide or crimes against humanity are liable to deprivation of their civil rights in the following manner:

  1. persons falling within the 1st and 2nd category are liable to deprivation of the right:

    1. a. to be elected;

    2. b. to become leaders, to serve in the armed forces, to serve in the National Police and other security organs, to be a teacher, a medical staff, magistrates, public prosecutors and judicial counsels;

  2. persons in the first category are liable to permanent deprivation of rights prescribed in item 1o of this article.

  3. persons in the second category, items 1o, 2o and 3o who refused to confess or whose confessions have been rejected, are liable to permanent deprivation of rights prescribed in item 1o of this article.

  4. persons in the second category items 1o, 2o and 3o whose confessions have been accepted and those in items 4o, 5o and 6o are deprived of those rights only for the duration of the sentence given by the competent Court.

  5. The names of the persons falling within the first and the second category, convicted of the crime of genocide, together with a short description of their identities and the crimes they committed, shall be posted in the history section of the genocide memorials. Those names shall also be posted at the offices of their Sectors, registered in their ‘criminal record’ and published on the Internet. (p.198)

Article 77 [as modified by article 19 Organic Law No 13/2008]

When there is a material combination of offences each of which classifies the offender in the same category, the maximum sentence provided in that specific category shall apply.

However, an offender who committed different offences placing him or her in the second category, point 6°, shall be liable to the maximum penalty of the same category, point 6°.

Article 78 [as modified by article 20 Organic Law No 13/2008]

Persons convicted of the crime of genocide or other crimes against humanity who at the time of commission of the offence were fourteen (14) years but less than eighteen (18) years of age are punished as follows:

Offender[s] in the first category:

  1. who refused to confess, plead guilty, repent and ask for forgiveness, or whose confession, guilty plea, repentance and request for forgiveness were rejected shall be liable to a term of imprisonment ranging from ten (10) to twenty (20) years;

  2. who confessed, pleaded guilty, repented and asked for forgiveness in accordance with article 14 of this Organic Law [article 60] after preparing a list of offenders who participated in the genocide and whose confession, guilty plea, repentance and request for forgiveness were accepted, shall be liable to a term of imprisonment ranging from eight (8) to nine (9) years;

  3. who confessed, pleaded guilty, repented and requested for forgiveness in accordance with Article 60 of this Organic Law, 9 before preparation of the list of offenders who participated in the genocide and whose confession, guilty plea, repentance and request for forgiveness were accepted, shall be liable to a term of imprisonment ranging from six (6) years and six (6) months to seven (7) years and six (6) months.

Offender[s] falling in the second category referred to in points 1°, 2° and the 3° of article 9 of this Organic Law [article 51]:

  1. who refused to confess, plead guilty, repent and ask for forgiveness or whose confession, guilty plea, repentance and request for forgiveness were rejected, shall be liable to a term of imprisonment ranging from ten (10) to fifteen (15) years;

  2. who confessed, pleaded guilty, repented and asked for forgiveness after being put on the list of offenders shall be liable to a term of imprisonment ranging from six (6) years and six (6) months to seven (7) years and six (6) months, but shall:

    1. a) serve a third (1/3) of the sentence in custody;

    2. b) have a sixth (1/6) of the sentence suspended;

    3. c) have half (1/2) of the sentence commuted into community service;

  3. who confessed, pleaded guilty, repented and asked for forgiveness before being included on the list of offenders shall be liable to a term of imprisonment ranging from six (6) to seven (7) years, but shall:

    1. a) serve a sixth (1/6) of the sentence in custody;

    2. b) have a third (1/3) of the sentence suspended;

    3. c) have half (1/2) of the sentence commuted into community service.

Offender[s] falling in the second category referred to in point 4° and 5° of article 9 of this Organic Law [article 51]: (p.199)

  1. who refused to confess, plead guilty, repent and ask for forgiveness, or whose confession, guilty plea, repentance and request for forgiveness were rejected, shall be liable to a term of imprisonment ranging from four (4) years and six (6) months to five (5) years and six (6) months;

  2. who confessed, pleaded guilty, repented and asked for forgiveness after being included on the list of offenders shall be liable to a term of imprisonment ranging from four (4) to five (5) years, but shall:

    1. a) serve a third (1/3) of the sentence in custody;

    2. b) have a sixth (1/6) of the sentence suspended;

    3. c) have half (1/2) of the sentence commuted into community service;

  3. who confessed, pleaded guilty, repented and asked for forgiveness before being included on the list of offenders and whose confession, guilty plea, repentance and request for forgiveness were accepted, shall be liable to a term of imprisonment ranging from two (2) years and six (6) months to three (3) years and six (6) months, but shall:

    1. a) serve a sixth (1/6) of the sentence in custody;

    2. b) have a third (1/3) of the sentence suspended;

    3. c) have half (1/2) of the sentence commuted into community service;

Offender[s] falling in the second category point 6° of article 9 of this Organic Law [article 51]:

  1. who refused to confess, plead guilty, repent and ask for forgiveness or whose confession, guilty plea, repentance and request for forgiveness were rejected, shall be liable to a term of imprisonment ranging from two (2) years and six (6) months to three (3) years and six (6) months but shall:

    1. a) serve a third (1/3) of the sentence in custody;

    2. b) have a sixth (1/6) of the sentence suspended;

    3. c) have half (1/2) of the sentence commuted into community service.

  2. who confessed, pleaded guilty, repented and asked for forgiveness after being included on the list for offenders shall be liable to a term of imprisonment ranging from one (1) year and six (6) months to two (2) years and six (6) months, but shall:

    1. a) serve a third (1/3) of the sentence in custody;

    2. b) have a sixth (1/6) of the sentence suspended;

    3. c) have half (1/2) of the sentence commuted into community service;

  3. who confessed, pleaded guilty, repented and asked for forgiveness before being included on the list of the offenders shall be liable to a term of imprisonment ranging from six (6) months to one (1) year and six (6) months, but shall:

    1. a) serve a sixth (1/6) of the sentence in custody;

    2. b) have a third (1/3) of the sentence suspended;

    3. c) have half (1/2) of the sentence commuted into community service.

Article 79

Persons who were less than fourteen (14) years old, at the time of the charges against them, cannot be prosecuted, but they can be placed in special solidarity camps. (p.200)

A Prime Minister's decree determines the modalities for conducting such solidarity camps.

Article 80 [as modified by article 17 Organic Law No 10/2007]

In case of default by the convicted person to properly carry out community service, the concerned person is taken back to prison to serve the remaining sentence in custody.

In that case, the Community Service Committee in the area where the convicted person is carrying out community service shall prepare an ad hoc report and submit it to the Gacaca Court of the Sector where community service is perlodged which will fill in the form to return the defaulting person to prison.

In case this is not possible, that report shall be submitted to the Gacaca Court that tried the person serving his or her community service.

A Presidential Order shall establish and determine modalities for carrying out community service.

Article 80 [as modified by article 21 Organic Law No 13/2008]

A person sentenced to both a custodial sentence and to serve community service shall first serve community service and if it is proved that the work was exemplary executed, then, the custodial sentence shall be commuted into community service.

However, when it is not possible to immediately start community service, time spent while waiting shall be taken into account when considering the period for a suspended sentence. This provision shall apply to persons sentenced by Gacaca Courts before coming into force of this Organic Law [No 13/2008].

When a person is sentenced to carry out community service or is on a suspended sentence ceases to perform to his or her expectation, the offender shall be taken to serve the remaining custodial sentence imposed by court.

When an offender has to be taken to prison to serve a term of imprisonment on account of bad behaviour, the committee for community service of the place where the offender was doing his or activities from, shall prepare a report about his or her conduct and submit it to the Gacaca court which tried the offender in the last instance or the Gacaca court of the same jurisdiction where community service is done or to the court of the Lower Instance Court if the Gacaca courts completed their activities for purposes of confirming the imprisonment.

When an offender has to be taken to prison to serve a term of imprisonment on account of the bad behaviour while serving a suspended sentence, the National Police shall prepare a report on his or her conduct and submit the same to the Prosecution Service which refers to it requesting the Gacaca Court which tried the concerned person in the last resort or the Gacaca Court of the place where he or she resides but with the same jurisdiction as the Gacaca Court which tried him or her in the last resort, or to the Lower Instance Court, if Gacaca Courts have completed their activities, which orders imprisonment.

A Presidential Order shall define and determine modalities for carrying out community service as an alternative penalty to imprisonment.

Article 81 [as modified by article 18 Organic Law No 10/2007]

While determining penalties, the sentence less than that provided for in the law can not be applied under the pretext of mitigating circumstances. However, in case such mitigating circumstances exist, the minimal sentence provided for shall be applied.

The person convicted of the crime of genocide who commenced serving the sentence, shall not be released on bail. (p.201)

Article 81 [as modified by article 22 Organic Law No 13/2008]

While determining penalties, no sentence shall be passed that is lower than the minimum or higher than the maximum sentence provided for a particular offence under the pretext of mitigating factors. However, when mitigating factors do exist, a minimum or maximum sentence shall be passed provided for that offence.

CHAPTER FIVE: SUMMONS OF DEFENDANTS AND NOTIFICATION OF JUDGEMENTS

Article 82

The summons are issued by the secretary of the Gacaca Court, through the grassroots organs of where the defendant resides or to the authority of where he or she is detained.

The summoned person who refuses to appear is brought by means of the forces of law and order.

Article 83

At the closing of the hearing, the parties to the trial and the persons present in the hearing are informed of the day and the hour for the judgement pronouncement.

Article 84

When the judgement is pronounced, parties present in the trial affix their signatures or their fingerprints in the register of the pronounced judgement. If they are not satisfied with the Court rulings, the parties declare their intention to appeal and it is registered.

Judgement passed by default, as well as that pronounced in the defendant's absence, is legally notified by a written notification of judgement, which the secretary of the Court forwards to the defendant through the Coordinator of the Sector of where he/she resides or to the authority of where he/she is detained.

The judgement passed against a person who has neither known address nor residence in Rwanda, is notified in the same way as he or she was subpoenaed as it is prescribed by article 99 of this organic law.

CHAPTER SIX: MEANS OF APPEAL

Article 85

The means of appeal recognized by this organic law are the following: Opposition, Appeal and Review of judgement.

SECTION I: OBJECTION10

Article 86

The judgements passed by default under the provisions of this organic law, opposition may be made against.

The objection is brought before the Court which has passed the judgement at the first level. The petitioner registers it to the secretary of the Gacaca Court. (p.202)

The opposition is only admissible if the defaulting party pleads a serious and legitimate reason which impeded him or her from appearing in the trial concerned. The Court shall assess the ground of admissibility, admit or reject it.

Article 87

The opposition period is fifteen (15) calendar days, starting from the day of the notification of judgement passed by default.

Article 88

The party making opposition who does not appear cannot petition for another opposition.

SECTION II: APPEAL

Article 89

Judgements relating to offences against property passed by the Gacaca Court of the Cell cannot be subject to appeal, but other cases are subject to appeal before the Gacaca Court of the Sector which gives a ruling in the last resort.

Judgments passed by the Gacaca Court of the Sector at first instance, are appealed against before the Gacaca Court of appeal which gives a ruling in the last resort.

Article 90 [as modified by article 19 Organic Law No 10/2007]

The defendant, plaintiff or any other interested person may appeal against a judgment passed by a Gacaca Court, in the interest of justice.

Article 91

The time of lodging an appeal is fifteen (15) calendar days, starting from the day the judgement is pronounced if it was passed by default, or starting from the day following the notification of judgement passed by default against which he or she did not make an opposition.11 The case is judged in the same way as before.

Article 92

If the Gacaca Court to which an appeal is referred, finds that the appellant has been classified in an inaccurate category, it classifies him or her in the category corresponding to offences of which he or she is accused and tries him or her at first and last resort.

However, when it finds that he or she is classified into the first category, the Gacaca Court forwards the file to the Public Prosecution.

Article 92 [as modified by article 23 Organic Law No 13/2008]

When it appears to the last appellate Gacaca court handling the matter that an appellant was wrongly categorised, the same court shall put the appellant in the right category and try him or her as a first and last instance court.

However, when court finds that an appellant is in the first category point 1o and 2o, it shall submit his or her case file to the Public Prosecution. (p.203)

SECTION III: REVIEW OF JUDGEMENT

Article 93 [as modified by article 20 Organic Law No 10/2007]

A judgement can be subject to review when:

  1. a person was acquitted in a judgement passed in the last resort by an ordinary court, but is thereafter found guilty by a Gacaca Court;

  2. a person was convicted in a judgement passed in the last resort by an ordinary court, but is thereafter found innocent by a Gacaca Court;

  3. a judgement was passed in the last resort by a Gacaca Court, and later on there are new evidence proving contrary to what the initial judgment of that Gacaca Court was grounded;

  4. a person was given a sentence that is contrary to legal provisions of the charges against him or her.

Persons entitled to lodge a review of the judgement are the defendant, the plaintiff or any other person acting in the interest of justice.

The Gacaca Court of Appeal is the only competent court to review judgements passed in the last resort.

Article 93 [as modified by article 24 Organic Law No 13/2008]

A case determined by a Gacaca court may be reviewed if:

  1. it was determined at a last appellate 12 level of a Gacaca Court and later new evidence contradicting what was based on is discovered;

  2. an accused was given a sentence that is inconsistent with the law.

An accused, victim or any person in the interest of justice may request for review of a case.

The Gacaca appeal court is the only competent court to review a case that was fully determined by another Gacaca court.

A case determined at a last appellate level by an ordinary or military court may also be reviewed by the same court.

CHAPTER SEVEN: COMPENSATION FOR DAMAGED PROPERTY AND OTHER FORMS

Article 94

Cases relating to damaged property shall be brought before the Gacaca Court of the Cell or other courts before which the defendants appear. However, such judgements shall not be appealed against.

Article 95

The reparation proceeds as follows:

  1. Restitution of the property looted whenever possible;

  2. Repayment of the ransacked property or carrying out the work worth the property to be repaired.

    (p.204)

The Court rules on the methods and period of payment to be respected by each indebted person.

In case of default by the indebted person to honour his or her commitments, the execution of judgement is carried out under the forces of law and order.

Article 96

Other forms of compensation the victims receive shall be determined by a particular law.

TITLE IV: MISCELLANEOUS, TRANSITIONAL AND FINAL PROVISIONS

Article 97

The public action and penalties related to offences constituting the crime of genocide or crimes against humanity are imprescriptibly.

Article 97 [as modified by article 25 Organic Law No 13/2008]

Prosecution and punishment for the crimes related to genocide or crimes against humanity shall not be time-barred.

Crimes of genocide and other crimes against humanity identified after winding up and closure of Gacaca courts shall be prosecuted and tried by ordinary and military courts applying the Ordinary Rules of Procedure but without prejudice to application of special provisions provided for by Organic Law no16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994 as amended to date.

Subject to the matter being tried, provisions of Organic Law No16/2004 of 19/6/2004 establishing the organisation, competence and functioning of Gacaca Courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, 1990 and December 31, 1994 as amended to date shall only apply.

Article 98

Courts dealing with cases of genocide and other crimes against humanity provided for by this organic law, can put to trial persons who have neither had address nor residence in Rwanda or who are outside Rwanda, if there are complementary evidences or serious guilt clues, whether they have previously been or not been crossexamined.

Article 99 [as modified by article 5 Organic Law No 28/2006]

If the defendant has neither known address nor residence in Rwanda, the summons’ period is one month. The Secretary of the Gacaca Court or the Court Registar in person or with assistance from other organs displays a copy of the summons on the premises of the court which must try the case and on the offices of Districts, Provinces and of the City of Kigali.

The copy of the summons can only be displayed in public places intended for that purpose.

Trials for the persons so summoned, are brought before Gacaca Courts, in accordance with article 66 of the Organic Law no 16/2004 of 19/06/2004 establishing the organisation, competence and functioning of Gacaca courts charged with prosecuting and trying the perpetrators of the crime of genocide and other crimes against humanity, committed between October 1, (p.205) 1990 and December 31, 1994, whereas before the Ordinary Courts, they follow the procedure provided for cases of defendants put to trial by default.

Article 100

The cases already forwarded to the courts before the publication of this organic law in the Official Gazette of the Republic of Rwanda, shall remain handled by the same courts. Provisions provided for by the ordinary laws shall apply thereto, without prejudice to special provisions of this organic law. As for the subject of the action, those courts shall apply provisions of this organic law.

However, if it appears that the person prosecuted in that manner, is charged with codefendants who are in the same category, by the Gacaca Court, provisions of article 2 of this organic law shall apply.

Article 100 [as modified by article 26 Organic Law No 13/2008]

Genocide-related cases that are within the jurisdiction of Gacaca Courts which had been referred to ordinary and military courts for prosecution before publication of this Organic Law [No 13/2008] in the official gazette of the Republic of Rwanda shall be tried by Gacaca courts in the following manner:

  1. cases before the Higher Instance and Military courts where no decision has been taken on a last appellate level, shall be tried in the first instance by the Sector Gacaca courts where the offence was committed;

  2. Appeal cases before the High Court of the Republic and the Military High Court where no decision on a last appellate level has been taken, shall be tried by the Gacaca appeal court where the offence was committed;

    Cases determined by the High court and Military court and time within which to lodge an appeal has not yet expired, shall be appealed and tried in the Gacaca appeal court where the offence was committed.

  3. Cases before the Supreme Court and no final decision has been taken, shall be tried in the last instance by the Gacaca appeal Court where the offence was committed.

    Cases heard by the High Court of Republic and the Military High Court and time within which to lodge an appeal has not yet expired, shall be tried and appealed against in the Gacaca appeal court where the offence was committed.

    Cases referred to in point 3° of this Article shall not be subject to review.

Article 101

The National Service in charge of the follow up, supervision and coordination of the activities of Gacaca Courts shall establish rules and regulations on the way the organs of Gacaca Courts formerly set up by Organic Law no 40/2000 of January 26, 2001 organizing the prosecutions for offences constituting the crime of genocide and crimes against humanity, committed between October 1, 1990 and December 31, 1994, as modified and completed to date, are replaced by those set up by this organic law.

Article 102

Elections to replace a person of integrity who cannot continue with his or her duties, due to any reason, are conducted by the Coordination Committee of the Court which hosts those elections.

However, when there are persons of integrity of the list of deputies, they assume their duties following the order of the list, without any other restriction. (p.206)

Article 103 [as modified by article 6 Organic Law No 28/2006]

Persons of integrity elected before the publication of this organic law [No 28/2006] continue their activities in Gacaca Courts as they appear on the appendix of this Organic Law [No 28/2006].

Article 104

Persons convicted by Gacaca Courts in conformity with articles 32 and 37 of the Organic Law no 40/200[0] of January 26, 2001 organising prosecutions for offences constituting the crime of genocide and crimes against humanity, committed between October 1, 1990 and December 31, 1994, as modified and completed to date, serve their sentences in accordance with the provisions of this organic law. Those who have already served at least six (6) months of imprisonment shall be released immediately after the publication of this organic law in the Official Gazette of the Republic of Rwanda.

Article 105

Organic law no 08/96 of August 30, 1996 organizing proceedings for offences constituting the crime of genocide and crimes against humanity committed from October 1, 1990 and organic law no 40/2000 of January 26, 2001 setting up Gacaca Courts and organizing prosecutions of offences constituting the crime of genocide and crimes against humanity, committed between October 1, 1990 and December 31, 1994, as modified and completed to-date, and all previous legal provisions contrary to this organic law, are hereby abrogated.

Article 106

This Organic Law comes into force on the date of its publication in the Official Gazette of the Republic Rwanda.

Kigali, on 19/6/2004

(signatures)

Notes:

(1) In the official English versions as published in the Official Gazette of the Republic of Rwanda no special of 19 June 2004, no special of 12 July 2006, no 5 of 1 March 2007, and no 11 of 1 June 2008.

(2) Sic. The French version is clearer: ‘La présente loi organique porte sur l'organisation, la compétence et le fonctionnement des Juridictions Gacaca chargées des poursuites et du jugement des infractions constitutives du crime de génocide et d'autres crimes contre l'humanité commis entre le 1er octobre 1990 et le 31 décembre 1994, ou des infractions prévues par le code pénal qui, selon les accusations du Ministère Public ou les témoignages à charge aussi bien que les aveux du prévenu, ont été commis dans l'intention de faire le génocide ou d'autres crimes contre l'humanité.’

(3) This paragraph is meant to refer to ‘omitting’ rather than ‘refusing’ to testify as mentioned in art 29(2), see the French version of the law.

(4) This paragraph refers to making ‘a slanderous denunciation’ as mentioned in art 29(2), see also the French version of the law, which uses the term ‘dénonciation mensongère’ in both paragraphs.

(5) See the French version.

(6) The Kinyarwanda and French versions do not refer to those killed themselves, but to only to those whose next of kin were killed (‘umuntu wese wiciwe’, ‘dont les siens ont été tués’).

(7) Sic. This is supposed to mean ‘Order and carry out a search of the defendant’, see the French version.

(8) This provision refers to the means of appeal of opposition (arts 86 et seq), not review; see the French version.

(9) This is meant to refer to art 60 Organic Law No 16/2004, as amended by art 14 Organic Law No 13/2008.

(10) In arts 41, 43, 66, and 86, ‘objection’ is used as a synonym for ‘opposition’.

(11) The English wording of this provision is incorrect. The first alternative is supposed to refer to judgments passed in the presence of the parties (see the French version: ‘prononcé contradictoire du jugement’).

(12) Contrary to what the wording suggests, review is not limited to appeals judgments. It was not intended to amend the provision to that effect. See the French version, which refers to ‘jugement coulé en force’ in the old as well as the new version.