Yazeed Kamaldien writes in the Cape Times on youth justice developments in South Africa — righting wrongs and restoring the balance in families and communities

Restorative Justice in Legislation

Centuries ago, when South Africa was inhabited by indigenous people only, justice was determined by a group of people that included the offender and the victim. This system was part of ubuntu, an African lifestyle of respect and understanding between individuals. In the form of restorative justice, these aspects of ubuntu are being reintroduced into the country's criminal justice system.

Later this year the South African Parliament will review the Draft Child Justice Bill as well as the Draft New Sentencing Bill drawn up by the SA Law Commission. The basis of both bills is restorative justice, a contemporary concept with its roots not only in ubuntu, but also in other indigenous cultures across the globe.

New Zealand's minority indigenous Maori population, for example, implemented restorative justice in the late 1980s after the country's existing criminal justice system dealt ineffectively with the mostly Maori juvenile offenders. After explaining how their ancestors dealt with offenders, the Maoris' efforts resulted in a law being passed to counteract the existing justice system.

This new law introduced Family Group Conferencing (FGC), involving a meeting between the offender, victim and their families. Facilitated by a trained mediator, FCGs became the alternative to court battles which wrapped up families in the legal system. The alternative, restorative justice, is ideally about repairing damage, re-establishing dignity and re-integrating all who were harmed or alienated in an offence. It aims at preventing criminals repeating the acts for which they were caught.

Basically, it is the Truth and Reconciliation Commission on another level.

Ann Skelton, Draft Child Justice Bill project leader and co-ordinator of the United Nations Child Justice Project, finds restorative justice very relevant and beneficial to South Africans. "It comes from the idea that we all live in a society of respect and balance. When somebody does something against that we need to restore this balance. It's about how ordinary people settle their differences. It's about bringing people together," says Skelton.

"African people brought together the victim and offender before the settlers came here. They would listen to both sides, and put the wrong right. Someone would return a goat he stole as well as offer a second goat to restore the damage done. "It's about repairing and healing relationships, rather than punishment. It's very relevant and very practical."

If passed, both bills will mean a change in South Africa's existing criminal justice system. The Child Justice Bill will make preliminary inquiries compulsory before a trial begins. The New Sentencing Bill will also be run on restorative justice principles.

Skelton explains of the Child Justice Bill: "The aim of the new bill will be to look at what can be done to get the child away from crime. The child will then be responsible for compensating the victim if the case was theft, or do community service if the victim does not want contact with the offender. However, violent crime offenders will not be diverted as the public's safety cannot be compromised."

Offenders charged with murder, attempted murder, severe assaults involving weapons or offences of a sexual nature are examples of violent crimes. First-time offenders and those charged with theft of goods of little financial value will most likely be placed on diversion programmes by courts.

Workshop

At a recent workshop on restorative justice, attended by various non-governmental organisations, terms like "healing the wounds of crime", "peace should be built" and "repairing broken relations" were used to describe the need for change. If it were up to some of those who attended, restorative justice could be an alternative to the existing criminal justice system, which entails police charges, court hearings and bail applications, among other legal red tape.

The Reverend Keith Vermeulen of the Methodist Church, a researcher at the Study Project for Restorative Justice and Ubuntu since 1996, said: "Communities have the power to resolve their conflicts. People always go for a legal option as a first resort instead of first looking at their own resources, community organisations, families and themselves, which is a more cost effective system than the Western criminal justice system."

He and other pioneers of the concept wish to see restorative justice operate alongside the existing criminal justice system. He believes it would also eliminate the need for kangaroo courts, vigilantism and prisons. "I'm not convinced prisons are a solution to crime. We need to look at alternatives to jails. We're paying money into a justice system that perpetuates the source of injustice. That budget could be pumped into community development, provide skills for workers and reintegrate criminals back into society, because many of them behind bars are a loss to society."

Vermeulen said, though, the entire legal system "can't be thrown away" and the challenge was to call for justice which remained consistent with constitutional values of ubuntu, understanding, forgiveness and reconciliation.

"Crime and violence is like a disease that afflicts our social health and well-being. The current justice system presents more dilemmas than solutions to afflicted communities and victims. "In the end, neither victim nor offender feel that justice has been done once a verdict is pronounced.

"The very setting of a court case makes a victim feel doubly wronged. The procedural nature of an accused pleading ‘not guilty' is a manner of denying accountability to a community of the wrong done against it." 

This inadequate healing effect, said Vermeulen, existed because the goals of the state, for many countries, were retributive. "The current system claims the state has been harmed and it will Inflict an amount of pain on the offender, proportional to his or her wrongdoing. We need to redefine the goals or outcomes of criminal justice.

"Unless there is a major paradigm shift in civil society's thinking on justice, the outcome of justice will remain focused on punishment, and not on the need for healing the effects of the current practices of wrong in our country," said Vermeulen.

"For the offender, crime is a way of saying ‘I am somebody. I belong to this community or society. I have something that makes me a somebody in this community'.

"They think, ‘We don't have material goods so we don't belong. If we steal these goods it will seem like we belong.' The criminal justice system makes the offender a player in the game of justice and the offender is not accorded the opportunity to take responsibility or be accountable for his or her actions," he said.

Like other restorative justice practitioners, Vermeulen is also calling for a system that is more adequate in ensuring justice, one which encourages dialogue and humane qualities. "We need a shift away from the procedural system, which is highly impersonal and westernised, to one that is governed by principles of human dignity. Restorative justice enables human interaction and participation and tries to deal with the complexities of crime and and human relationships. 

"We need to encourage a process of dialogue rather than a legal battle," he said. Restorative justice, it is hoped, could possibly end the cycle of crime which so easily changes into one of victimisation, evident in Skelton's research in juvenile prisons.

"These children see themselves as victims of a system. They need to see their behaviour was wrong. They need to ask themselves how they are going to be a contributing member to society," said Skelton. There is a belief that crime will be around as long as there is poverty: it could be said that justice has always been around, we have simply forgotten how to restore the values of our ancestors.

You can contact Yazeed Kamaldien at yazeedk@independent.co.za

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