Hybrid mechanisms (not to be confused with hybrid courts) have characteristics of both informal and formal mechanisms. These entities may have started out as community-based systems but have been integrated in part into the judiciary and regulated by law (UK Department for International Development, 2004).The Local Council Courts in Uganda are one such hybrid mechanism – they began as local “resistance” councils during Uganda’s civil war in the 1980s. They operated in areas where the state had lost control and were composed of members elected by all the adults in a particular village. The resistance council would also act as a case resolution mechanism. After the regime change in Uganda resistance council courts were formally incorporated into law and now are known as Local Council Courts (Penal Reform International, 2000). The Local Council Courts handle civil matters arising out of daily activities within their jurisdiction or matters arising out of violations of local by-laws.
Another hybrid-type mechanism is common in the formal justice systems of settler societies, such as the United States and Canada. These formal justice systems have integrated some types of indigenous case resolution mechanisms into their processes. For example, the courts require that some cases go through a community-based mediation process before a case can be filed in the formal courts; these mediation processes are often state approved and state funded. Other formal courts have incorporated practices based on community traditions into the procedures of the formal courts.
Rwanda – Development of Hybrid Justice in a Post-Conflict Context
The gacaca courts, which were put into place in Rwanda after the genocide in that country, are an example of an adaptation of a traditional justice mechanism which was incorporated into the formal system of justice. Meaning literally, lawn or on the grass, the gacaca courts take place outdoors in thousands of locations around the country. Women were the majority of survivors and witnesses to the violence in Rwanda. Moreover, rape was used as tactic of genocide in Rwanda, so women’s participation and accountability for violence against women was a primary concern in the gacaca system. Although in the past women were not permitted to serve as gacaca judges, the government has now required that at least 30 per cent of the judges be female.
The treatment of sexual violence in the Rwandan transitional justice system has been complex and raised concerns. The government classified sexual violence as a Category One crime under the gacaca law, along with the other most serious violations, including planning the genocide. For Category One crimes, initial testimony and evidence is collected in community gacaca hearings but then prosecution of Category One crimes takes place in the formal judicial system. Although the formal courts hand down more severe sentences than gacaca courts, they are slower moving and more difficult for victims to access, in terms of both travel time and expense.
The gacaca courts did not hear genocide-related rape cases until 2008, when the government transferred them from conventional courts to gacaca courts. This decision seriously undermined the original goal of protecting victim privacy and though the sessions were to be held “behind closed doors” victims believed that because the judges were members of their community and in some cases related to the accused, confidentiality was not possible. Importantly, gacaca courts, unlike conventional courts, do not offer civil damages. Women who participated also noted the corruption evident in the process, the offering of bribes, the lack of impartiality, and the difficulty in getting witnesses to appear in a gacaca process. However, some victims appreciated the right to bring an advocate and a friend to the hearing and the opportunity to see the communal rooms where their trial would be held ahead of the actual trial. And, some victims utilized the opportunity to present their allegations in letter form to the court, which would not have been possible in a conventional court setting.
Adapted from: UNIFEM. 2009. Gacaca and transitional justice in Rwanda and Human Rights Watch. 2011. Justice Compromised: The Legacy of Rwanda’s Community-Based Gacaca Courts.