Issues at Stake
If there is anything in political negotiations that contending parties might agree on, it surely ought to be the creation of a regime of law that would channel conflict into peaceful, political engagement. It is seldom so simple. The issues at stake in negotiations on law entail several questions:
Should political negotiations first deal with foundational principles of law or brace into the complexities of power sharing and military integration? Can agreement on first principles generate a fundamental understanding on which to build subsequent negotiations?
What is the understood purpose of negotiated principles? Are these understandings to reform existing institutions, or are they to establish a revolutionary new order?
How do the perspectives on legal order that delegations brought with them affect the course of the negotiations? Do perspectives from different legal traditions and political circumstances lead finally to shared understandings, or do they cover over profound differences of view and approach?
What was the significance of the agreed principles? What did democracy, participation, rights, equity, or good governance mean to each party? The language in agreements usually comes out of different contexts and points toward different objectives.
Whose Rule? Which Law?
Like many descriptors in the public arena, the rule of law is a more complicated and ambiguous prescription than it seems.6 Which legal order is being invoked? A legal system may be nothing more than the maintenance by accepted authority of traditional customs and sanctions.7 It may be, in the continental tradition, a codification of fundamental principles, derived from a universal normative order. Or it may be the compilation of particular decisions of law courts using previous precedent to establish “common law.”8 Changing legal systems can radically restructure society. In transitional situations especially, law becomes an instrument of power rather than a hedge against it.9
The Rwandan government delegation was schooled in code law, a good part of it directly taken from Belgian criminal and civil law at the time of independence. The RPF’s experience, at least for the leadership that came from Uganda, was in the common law tradition, combining precedent from British courts with local custom. Within Rwanda, Rwandan citizens had experienced the administration of law under a de facto single party from 1962 to 1973 and a de jure single party from 1978 to 1991. The president ruled, and the law was his instrument.
Outside of Rwanda, refugees and exiles that made up the RPF had lived in quasilegal status. Theoretically they were under the protection of the international refugee regime, but they were without guarantee of life or property and thus at the mercy of local and national politics. In 1982–83 for example, thousands were forced off land they had bought in southwest Uganda and harried back to refugee camps or into Rwanda with great suffering and hardship. Moving from one part of the host country to another was sometimes necessary to avoid local animosities. Under these conditions, law was arbitrary; refugees made up their own rules for survival. Security became the lodestar of any legal undertaking.
UNIVERSAL NORMS OR POSITIVE LAW?
In the particular case of Rwanda, it was also a question of what international understandings of law were at play. Was the Rwandan dispute a matter of international province or local jurisdiction? Emphasizing the external nature of the insurgency, the Rwandan government tended to appeal to international law on intervention, whereas the RPF generally held that this was an internal argument to be resolved between the parties themselves. Rwandan authorities believed that civic rights and social status were internal matters for the government to control, whereas the RPF appealed to universal standards of human rights.10
In its formulation, the amended N’sele ceasefire agreement described the rule of law in terms (national unity, democracy, pluralism, and respect for human rights) that bespoke late night wrangling over such differences of approach, bridged by a grab-bag definition of multiple and sometimes contradictory notions.11 Could the rule of law undergird the national unity objectives of the N’sele ceasefire agreement? As Kritz points out, the rule of law is fundamentally a conservative principle, unless one is seeking to replace an existing legal system with another. The “respect for human rights,” however, is a liberal principle, often challenging—on the basis of universal norms—the particular application of existing law.12 Positive law and innate rights may often conflict.13 In the Rwandan negotiations, the government tended to emphasize existing law and local custom, whereas the Patriotic Front appealed to immutable, universal rights.
WHICH FOUNDING PRINCIPLES?
The appeal both to democracy and pluralism had its ambiguities as well. As Aristotle long ago made clear, democracy has within it a bias toward anarchy or tyranny. His preferred option was a “mixed regime,” incorporating the strengths of several political interests within the body politic. This view has its champions in contemporary proponents of pluralistic republicanism.14 In Rwanda, since the revolution of 1959, Hutu elite had ruled under the banner of majoritarian democracy. But the Hutu regimes excluded, either arbitrarily under Kayibanda or by announced policy under Habyarimana, a significant part of the population from effective representation in the institutions of government and the occupations of state. The leadership of the RPF, on the other hand, had been trained in the “no party” politics of Museveni’s National Resistance Movement, inclusive of various ethnic groups but holding to a vision dictated from the top, not to a consensual agreement on law. What would be the constitutional foundation underlying the establishment of political order in Rwanda?
A TRADITIONAL RWANDAN VIEW?
Was there, behind the scrim of these modern interpretations, a traditional understanding of judicial relations in Rwanda? There did exist in precolonial Rwanda a formal judicial mechanism mediated by the army system into which each Rwandan male was integrated. Assisted by his local military chief, every Rwandan had the right to appeal directly to the court of the king (mwami). In disputes with land chiefs or cattle chiefs, the army chief became the designated protector of his clients’ interests. Although the king was surrounded by guardians of ritual custom (abiru) and by a council of chiefs (abatware b’intebe), he ruled by virtue of his divine origins, gave account to no one, and passed judgment as he saw fit.15
The import of this traditional system of justice is fourfold. First, there was an institutionalized system of justice in precolonial Rwanda with a direct route from local grievance to the king’s court. Second, the mediator for that justice was the local army chief, and thus justice was tied directly to military representatives of royal authority. Third, the king was not circumscribed in his right to judge; the system of justice was thus hierarchical and autocratic, untrammeled by institutional limitations. Finally, with the president’s close control of the judicial system, the pattern of judicial administration under the Second Republic replicated in modern garb this traditional model. The first agenda item at Arusha—negotiations on the rule of law—implied a direct challenge to the prevailing judicial ethos and to a traditional Rwandan understanding of judicial administration. Would negotiations on the rule of law lead to a separation of powers and judicial autonomy, or would the old system of personalized but autocratic justice prevail?
If autocracy and autonomy, law and rights, democracy and plurality are problematic in any contemporary polity, how much more were they salient in troubled Rwanda?16 The ruling regime, the newly established political parties, and the “armed opposition” all invoked the norm of “democracy” and the process of “democratization.” All would have, as well, upheld a national unity that allowed some form of diversity. All would have, in principle, supported “human rights” as constitutionally defining the place of citizens within the national polity. All, no doubt, sought a regime in which “political relations between the state and its citizens feature broad, equal, protected and mutually binding consultation.”17 But what, concretely, did these ideals mean for determining the parameters of “law” and for structuring the other items on the negotiation