Restorative Justice

What Is Restorative Justice?

Justice is regarded as being primarily about making things right. It seeks to involve everyone who has an interest in the resolution of an incident, often through some form of encounter, and to reintegrate everyone who has been affected into the community.

Conflict transformation and peacebuilding

The practice of RESTORATIVE JUSTICE can easily become isolated from the context in which crime occurs and attempts to respond justly are made. The connection and progression, from conflict to violence to harm is not always recognised. In our view, Restorative Justice practice in SA at the present time needs to take far more cognisance of these distinctions and progress. The fields of strategic peacebuilding and conflict transformation are valuable tools for doing this.

These terms are the subject of debate in the field of conflict management, conflict resolution and conflict transformation. We identify with the perspective that understands that while certain conflicts can be resolved and managed, they are often symptoms of underlying issues, often situations of serious injustice. Simply managing and resolving conflict can suggest that we ignore these issues and the need for change. Conflict transformation has been suggested as recognising the immediate situation as well as the underlying patterns and context. It has been defined as “to envision and respond to the ebb and flow of social conflict as life-giving opportunities for creating constructive change processes that reduce violence, increase justice in direct interaction and social structures and respond to real-life problems in human relationships.”

Peacebuilding

Peacebuilding seeks to prevent, reduce, transform, and help people recover from violence in all forms, even structural violence that has not yet led to massive civil unrest. At the same time it empowers people to foster relationships at all levels that sustain them and their environment.

Peacebuilding supports the development of relationships at all levels of society: between individuals and within families; communities; organizations; businesses; governments; and cultural, religious, economic and political institutions and movements. Relationships are a form of power or social capital. When people connect and form relationships, they are more likely to cooperate together to constructively address conflict.

Peace does not just happen. It is built when people take great care in their decision-making to plan for the long term, anticipating potential problems, engaging in ongoing analysis of the conflict and local context, and coordinating different actors and activities in all stages of conflict and at all levels of society. Strategic peacebuilding recognizes the complexity of the tasks required to build peace. Peacebuilding is strategic when resources, actors and approaches are coordinated to accomplish multiple goals and address multiple issues for the long term. Certain values, skills, analyses and processes are inherent in peacebuilding.

We are convinced that the following analysis of conflict is eminently relevant and helpful to us in SA at the present time

The fact that SA has one of the highest levels of inequality (a major form of structural violence) and some of the highest levels in the world of ALL the forms of self- and community destruction listed is not a coincidence.

We believe that the reality of crime (an expression of secondary violence at community level) needs to be responded to from the perspective of this analysis. Our main focus is at this level, while also touching the levels of self-destruction and national destruction. This analysis also points to the necessity of working in partnerships with a wide range of other stakeholders.

Why Restorative Justice?

Since the early 1970s there has been growing dissatisfaction in many countries with the criminal justice system, both in the way it is conceptualised and in the way it functions.

The various streams within this comprehensive movement have included the restitution movement, the victims’ rights and support movement, the prison abolition movement (see Daniel Van Ness, ‘An Overview of Restorative Justice Around the World’, Paper presented at Eleventh United Nations Congress on Crime Prevention and Criminal Justice, Bangkok, Thailand, 18–25 April 2005); and more recently the therapeutic jurisprudence movement (Annette Van der Merwe, ‘Therapeutic jurisprudence: judicial officers and the victim’s welfare’ – S v M 2007 (2) SACR 60 (W) pp 98–106. At http://137.215.9.22/bitstream/handle/2263/15710/VanDerMerwe_Therapeutic%282010%29.pdf?sequence=1

Specific concerns that have been expressed include:

• The fact that criminal proceedings tend to exclude victims, despite the fact that they are the very people most affected by the crime incident;
• The inadequacies in the conceptual foundations or practices of criminal justice;
• The recognition that imprisonment causes suffering and debilitation;
• The inadequacies of retribution alone as a governing theory; and
• The appropriateness of making offenders accountable to their victims.

Some feminist scholars have argued that societal responses to crime should reflect values such as harmony and felicity rather than those of control and punishment (Daniel Van Ness and Karen Strong, Restoring Justice, Cincinnati: Anderson Publishing Company, 2002). Annette van der Merwe quotes Susan Daicoff to the effect that all these streams have ‘two core common features’:

They all explicitly seek to:

• Optimise human well-being in legal matters, whether that well-being is defined as psychological functioning, harmony, health, reconciliation or moral growth; and
• Focus on more than legal rights, so they include the individual’s values, beliefs, morals, ethics, needs, resources, goals, relationships, communities, psychological state of mind, and other concerns in analysis of how to approach the legal matter at hand (Van der Merwe, ‘Therapeutic jurisprudence’, quoting Susan Daicoff, ‘Growing Pains: The integration vs. specialization question for therapeutic jurisprudence and other comprehensive law approaches’, 30 Thomas Jefferson Law Review 551, 2008).

Restorative justice is a very specific stream within this comprehensive movement, and has developed in such a way that it is not limited to criminal justice matters (Gerry Johnstone and Daniel Van Ness (eds), Handbook of Restorative Justice, US and Canada: Willan Publishing, 2007, p 15). It represents an attempt to rethink, fundamentally, our concept of what justice is, to view matters of crime and justice through a new lens, in many ways by returning to earlier understandings. For that reason,
it is frequently described as a rediscovery rather than a discovery (AM Skelton, ‘The Influence of the Theory and Practice of Restorative Justice in South Africa with Special Reference to Child Justice’, unpublished LLD thesis, 2005, p 4).