This week, 15 to 19 November 2010 marks the International Restorative Justice Week. South Africa’s justice system is in the process of moving away from a retributive justice system to a restorative system which is informed by democratic elements of openness, participation, reconciliation and ubuntu amongst other considerations.
Restorative Justice is primarily an approach to justice whose aim is to involve parties to a dispute as well as others affected by the dispute in a process that seeks to collectively identify the harm, the needs and obligations through accepting responsibilities, making restitution, and taking measures to prevent a recurrence of the incident whilst at the same time promoting reconciliation. It further sees crime as an act against the victim and focuses attention on repairing harm that has been committed against the victim and community.
Restorative Justice also takes into consideration that the offender needs assistance and therefore seeks to identify what needs to change to prevent future re-occurrence. This approach is in response to the challenges faced by the criminal justice system and at the same time advocates for the transformation of the administration of justice. Through the Justice Crime Prevention and Security (JCPS) Cluster, a restorative justice approach has been adopted for a number of reasons, including the fact that Restorative Justice is largely informed by indigenous and customary responses to crime while referring to processes within and outside of the criminal justice system.
The JCPS and the Department of Justice and Constitutional Development, through the recently signed JCPS Cluster Delivery Agreement, seek to address the key outputs of an effective, efficient and integrated criminal justice system. These include the approval of the Restorative Justice Policy Framework with activities across the Cluster and increasing the use of alternatives to arrest by the police. The agreement further targets increasing the use of diversion programmes by prosecutors and courts, as well as supporting service providers in order to promote the use of diversion programmes, non-custodial sanctions, Alternative Dispute Resolutions Mechanism-processes and to increase mediation by prosecutors. The JCPS Cluster has further drafted the Restorative Justice Framework which will soon be approved and which will assist in the full implementation of the Restorative Justice programmes.
Restorative Justice does not replace the current criminal justice system. It has to be seen as a mechanism that complements the existing measures in an effort to enhance the capacity of the criminal justice system to respond to disputes. It is a process entered into by the victim and/or offender on purely voluntary basis. The nature of the decision-making process encourages involvement and dialogue to the greatest extent possible by the main participants, in determining responses to the disputes.
The Department of Justice and Constitutional Development recognises the present realities of crime in the country and the need to be pro-active in crime prevention by way of placing increased emphasis on the effective rehabilitation and re-integration of offenders, including child offenders in order to minimise the potential for re-offending. The provisions of the Child Justice Act, 2008 (Act No 75 of 2008), which came into operation on 1 April 2010, are modelled on the principles of Restorative Justice.
These provide that all children in conflict with the law have the opportunity to be considered for diversion programmes only if they acknowledge responsibility for their wrongdoing. With the application of the Restorative Justice process, even children who have committed very serious offences may be considered for diversion, but only if the Director of Public Prosecutions certifies that the child may be considered for diversion and that a relevant diversion programme is available.
The Child Justice Act further makes provision that diversion for less serious offences can now be decided by a prosecutor even before the matter is even taken to court; and if a relevant program is available. If the diversion program is not completed successfully, the child may be brought back to court for an enquiry into the reasons why the program was not completed. If the reasons relate to financial need, the child may be given support to complete the program concerned or be referred to another relevant diversion option. If the fault for non-attendance lies with the child, s/he can still be prosecuted for the same offence.
The Act, however, provides that the views of the victim and their family must be taken into consideration when diversion or a non-custodial sentence, is considered. This aims to create balance between the rights and responsibilities of the child offender and his/her family as well as those of the victim and his/her family involved. In this way, the Act supports the establishment of a more restorative justice, ubuntu-orientated criminal justice system for children.
The strategic plan and outcomes of the Restorative Justice System are victim-orientated and ensure that victims and offenders become a central part of the resolution of the harm or dispute caused. In doing so, the department and the JCPS Cluster are also prioritising victim’s rights and the implementation of the Victim’s Service Charter, as part of the broader Victim Empowerment Programme of Government.
Restorative Justice further encourages working together with the primary objective to make a positive difference in the lives of vulnerable communities.
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Tlali Tlali
Cell: 082 333 3880
Source: Department of Justice and Constitutional Development
