B Mabandla: Restorative Justice and Community Prosecution
Conference

21 February 2007

Programme Director
Director of National Prosecutions, Advocate Pikoli
Distinguished guests
Ladies and gentlemen

I would like to thank the national Director of Public Prosecutions, Advocate
Vusi Pikoli for inviting me to come and share with you some thoughts on the
enormous potential and of course some of the challenges, of the
institutionalisation of restorative justice from an Integrated Justice System
perspective.

Ladies and gentlemen

The constitutional mandate of the Department of Justice and Constitutional
Development is to uphold and protect the Constitution and the rule of law and
to provide accessible, fair, speedy and cost-effective administration of
justice in the interests of a safer and more secure South Africa. From
government's side we have an obligation to deal with crime and dispute
resolution in a manner that most effectively and efficiently meets the needs of
our people.

The greatest challenge facing the judicial system is how we ensure access to
justice for the ordinary citizen of the country. In the context of access to
justice our Constitution is perceived to be biased towards guaranteeing a fair
trial for the accused person, while it is seen to provide little protection to
the victims of crime. In this approach the assumption is that it is the
society, the corporate whole, which is harmed by criminal wrongdoing; thus
relegating the victim from the centre of the process.

Crime is seen as a wrong done to society, is defined by lawbreaking and
guilt. Criminal justice is concerned with determining guilt and administering
punishment through a process involving a contest between the offender and the
state and is governed by a set of impersonal and systematic rules. But this
system, with its emphasis on the prevailing norms of legal rationality and
procedural formalism, leaves little room for victims, offenders and communities
concerned to actively participate in the justice process and the impersonality
of the proceedings tend to dehumanise both the criminal act and its
consequences.

However, we also all have an understanding of justice as a sense of
fairness, a feeling that everyone should be respected, that the same rules
should apply to everyone, and that when harm is done there should be some
process of restoration. This is where I believe restorative justice provides
some answers. Restorative justice proceeds from the assumption that crime
involves a violation of people and of human relationships resulting in injuries
to victims, communities and the offenders themselves. Rather than establishing
guilt and exacting punishment under a set of impersonal rules, it seeks to
repair the damage caused by the offence and restore the relationships between
the parties concerned by actively involving all partied in a process of
negotiation and reconciliation.

This is most often at odds with our usual response to crime, which is to
track down the perpetrator, have him or her prosecuted by the State, and have
an impartial judge mete out a punitive sentence in punishment. Because we live
in a country in which citizens are extremely concerned with the levels of
crime, especially violent crime, punitive sentencing is seen by many as a way
to prevent crime and preserve the social order.

Regardless of this, more and more people are beginning to ask whether this
is the only approach in resolving disputes. There is an increasing sense of
dissatisfaction and frustration with the current offender-focused criminal
justice system that openly excludes the victim and the community. Over the past
decade a new way of thinking about how we should view and respond to crime and
delinquency has been gaining ground around the world as well as South Africa;
and is beginning to exercise a significant influence on criminal justice policy
and practice. Despite many efforts to alleviate the situation and to place the
focus on the victims of crime and to put right the wrong that has been done to
him or her.

The problem is further exacerbated by the fact that the needs of the
ordinary man and woman in the street are rarely fully met anywhere in the world
by the formal court model. Research supports that people often walk away from
the courts with a sense that they were not heard when concerns that matter
dearly to them are ignored by the court and its officials. This is not the kind
of justice people are hoping for. Justice involves the victim, the offender and
the community in search for solutions which promote repair, reconciliation and
reassurance.

That is the kind of justice we are hoping to provide our people to enjoy
because restorative justice gives priority to the question of what set of
practices are most likely, in a given context, to undo or minimise the damage
caused by the offence, thus achieving the goal of restoring social equality.
Further to this it has been determined that harsher punishment has not
prevented offenders from committing further crime.

In fact sentences of more than two years show an average increase of seven
percent in the repeat offending rate. The Dutch criminologist Herman Bianchi
has noted "that prisons do not effectively protect citizens from criminality
but instead provoke new criminality by making inmates less fit to live in
society than they had been before incarceration. It has been known for ages
that prisons are superb schools for criminal education." If punitive sentencing
leads to more crime rather than less, cannot be said to be the cornerstone of
our criminal justice system. The answer to that question is that this is no
longer the case.

The department and its partners are vigorously investing in more effective
and accessible strategies in response to crime and the needs of victims of
crime. These strategies include the alternative dispute resolution (ADR)
mechanism. ADR is a method of bringing parties together to resolve
disagreements without the need for legal or administrative interventions. It is
more about restoring harmony between the parties in dispute than deciding who
is wrong or right. It is constructing resolutions to disputes which allow the
interests of both parties to be met as opposed to deciding the dispute on the
basis of one of the parties winning and the other losing.

I want to emphasise that 'restorative justice' is a theory of justice that
relies on reconciliation rather than punishment. The theory relies on the idea
that a well-functioning society operates with a balance of rights and
responsibilities. When an incident occurs which upsets that balance, methods
must be found to restore the balance, so that members of the community, the
victim and offender can come to terms with the incident and carry on with their
lives.

In restorative justice processes, all parties with a stake in a particular
crime, come together to resolve collectively, through dialogue and mutual
understanding, how to deal with the aftermath of the crime and its implications
for the future. Of course we have to acknowledge that there is an existing
formal justice system and legislation that regulates various aspects of dispute
resolution. But, and this is an important point, we also have a Constitutional
obligation to effect changes to our judicial system. Legitimacy, trust in the
system, and transformation mandates from the people based on the Constitution,
are all directives as to why we should continue to improve and adapt our
justice system.

The Truth and Reconciliation (TRC) process demonstrated that restorative
justice can be used in a wide variety of contexts and that it is effective not
only in the case of 'ordinary crime'. The ability of South African victims to
forgive their perpetrators for the most atrocious crimes is a shining example
to all South Africans. The TRC was established so that the violence of the past
could be acknowledged and so that hurts suffered by all parties concerned could
be dealt with, so that the future could be faced with confidence. This process
proved that 'restorative justice' is not an empty concept that can mean all
things to all people as one of our scholars argued. It is creative in the sense
that it promotes accountability of offenders and can bring about rehabilitative
healing and reintegration. This process of accountability and acceptance of
responsibility means that restorative justice is not easy on offenders.
Accepting responsibility and facing a victim can be tougher and more meaningful
than other sanctions, including imprisonment. The routine passing of short
terms of imprisonment is not meaningful.

While the TRC process provided us with an example of what can be done by a
government and a people committed to ensuring both social and criminal justice.
This commitment is further demonstrated by the "Service Charter for Victims of
Crime in South Africa" which lays the foundation for balancing the rights of
both the victims and the accused person. Its intention is to ensure that
victims are treated with compassion and respect. The Service Charter for
Victims of Crime consolidates victims' rights as provided in the Constitution
and the legislative framework.

In particular the Charter emphasise the victim's rights to restitution and
defines restitution as referring to cases where the court, after conviction,
orders the accused to give back to you the property or goods that have been
taken from you unlawfully, or repair the property or goods that have been
unlawfully damaged, in order to restore the position you were in prior to the
commission of the offence.

This provides the context in which restorative justice can begin to take
hold as a key strategy. A strategy that takes victims seriously and treats them
with due dignity whilst calling offenders to account for their deeds and
finally aims to address the causes of crime. Here I would like to add a word of
caution when we talk of restorative justice we need to understand that the
primary focus is on restoring, not causing further harm; it is about bringing a
crime into the open and discussing it in order to achieve repentance, healing
and hope. The institution of traditional leadership had restorative justice
features before they were distorted by colonialism and apartheid.

They sought to restore the relationships between the victims, offenders and
their respective communities, and maintained peace and harmony that were
threatened by the offence. I mention these structures because I want to bring
to the audience that South Africa, as in certain parts of the continent,
exhibited such structures. It is also important to enhance these structures as
they serve a significant number of South Africans in rural areas. We should
also learn and broaden these restorative justice practices to other
communities.

We are not the only country recognising and seriously considering the
practice of restorative justice. In the international level restorative justice
has attracted a great deal of attention. There is definitely a growing interest
in restorative justice around the world. Most European Union member states
carry out mediation in criminal cases, but procedures and practices vary
greatly between states. The experiences of these countries are of great value
to us in our quest to encourage a culture of restoration and reparation. I am
proud that South Africa has also started the dialogue.

Restorative justice should be fully integrated within the criminal justice
system, playing a role at every stage, from low-level cases which can be
diverted out of the courts to serious, violent crime where restorative justice
mechanisms can occur in conjunction with imprisonment. While the imprisonment
of criminals will no doubt remain an integral part of combating crime it has to
be combined with other effective programmes aimed at prevention, treatment,
restitution, reparation and education.

I hope that this forum will address the question how to increase citizens’
awareness of mediation and how to enhance communication and co-operation
between authorities and service providers. In this respect, training police
officers, prosecutors, community leaders and traditional leaders should be
considered particularly important. I am sure that the judiciary is also seized
of the debates and will infuse into their judicial education and training
programme, programmes on restorative justice.
Key issues that I believe should be given more attention include safeguarding
the victim, ensuring full legal protection and overcoming prejudices. Debate
has arisen in particular about victim-offender mediation in domestic violence
cases and about the concern that offenders might not be held responsible for
their actions. I want to emphasise that this issue is of great importance to us
as we are a nation that confronts challenges of domestic violence, women and
child abuse.

The potential of restorative justice practices to transform the criminal
justice system can only be realised if we build a broad base of support and
understanding for its principles and practices. We need to create an atmosphere
which is conducive to the promotion of more creative and cost-effective
solutions which aim to reduce the burden on the criminal justice system. This
can be done both by diverting cases out of the system and by providing the
system with a range of constructive sanctions aimed at bringing the offender,
the victim, families and the community together in seeking ways to put things
right after an offence has been committed.

A key aspect of this move from theory to practice will be the ability and
will of the various stakeholders to ensure inter-departmental collaboration and
partnerships to co-ordinate and manage correctional responses and options. If,
as many believe, and supported by research, the solutions for reducing crime
are shared by all members of society then real change can be effected when all
stakeholders work together towards a common solution. The South African
government, led by the Department of Justice and Constitutional Development,
has embarked on a process to ensure that restorative justice thinking is
infused into the criminal justice system. It is an inter-sectoral project which
will engage with civil society to form strong partnerships to take forward
restorative justice initiatives in the country.

I would like to emphasise that the best results in crime prevention are
achieved when the justice process is placed in the hands of people closest to
the conflict, namely the victim, the offender and the community. Not only
government, but victims, offenders and their communities should be actively
involved in the criminal justice process at the earliest point and to the
maximum extent possible. Restorative justice can provide a practical, coherent
and sound response to the moral challenge presented by crime.

It provides feasible ways of applying and nurturing the alternative dispute
resolution structures. Some proponents of restorative justice recommend that
restorative justice programmes should be independent of the mainstream criminal
justice because their objectives and guiding principles are different. Others
look for ways in which forms of restorative justice might be combined with
current criminal justice practices so that the later could be informed and
influenced by restorative principles.

But most hope that, provided that the evaluative research continues to show
encouraging results, restorative justice programmes will become a mainstream
alternative to traditional criminal justice processing. I trust that the
debates today will craft a suitable alternative for South Africa. In hope the
debate here today will benefit all South Africans and will result in effective
strategies to promote peace and stability.

I thank you.
Issued by: Ministry of Justice and Constitutional Development
21 February 2007
Source: Department of Justice and Constitutional Development (http://www.doj.gov.za)