List of Tables
Chapter 11: Conclusions, Policy Implications and Recommendations
3.2.1 Definitions
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Chapter 3: Community Restorative Justice: An Informal Justice System
3.1 Introduction
There is increasing academic debate on the use of restorative justice in domestic violence cases. A critical issue is whether restorative justice as an alternative to criminal justice is effective or even appropriate for such cases. This chapter discusses this issue as well as the definitions, theories and concepts relating to restorative justice. It highlights the debates in the literature on the use of community restorative justice (CRJ) in cases of domestic violence, use of the traditional justice system in cases of domestic violence as well as arguments for the simultaneous use of plural justice systems for such cases. There is considerable debate on whether domestic violence is a private or public matter as well as whether the traditional justice system is a private or public forum. While the debates and issues raised here remain largely unsettled and are the subject of continued empirical inquiry, this chapter provides a foundation to understand CRJ, with special reference to cases of domestic violence. A conceptual framework for exploring the problems and benefits associated with CRJ is presented being for the chapter concludes with a brief discussion of what appears to be an interactive nexus between access to justice, plural justice systems and domestic violence.
3.2 Community Restorative Justice, General context
Community restorative justice is a community-based restorative justice initiative that seeks access to justice using an informal (non-state) justice system, and is responsive to people’s immediate need for justice (Stapleton, 2007:4). It has developed through practice; CRJ procedures and processes “are tied to traditions and values passed down from generation to generation”. Indigenous communities have been practicing restorative justice at community level for many centuries. Before discussing the manner in which restorative justice can be characterised as CRJ it is important to examine the definitions and theories related to restorative justice.
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not include a focus on community involvement beyond the victim and offender. On the one hand, restorative justice is defined as a process that involves “those who have a stake in a specific offence that collectively identify and address harm, needs, and obligations, in order to heal and put things right as soon as possible.
Offenders become accountable through understanding the harm caused by their offences, accepting responsibility and taking action to repair the harm they have caused” (Zehr, 2002:37).
On the other hand, some scholars (Braithwaite, 2003:56; Latimer et al, 2005:131; Edwards and Sharpe, 2004:2) emphasise “the role of the community in restorative justice”. Braithwaite and Latimer’s respective definitions of restorative justice are thus expanded to embrace not just a victim-centred approach and offender accountability, but restoration of the affected community. For instance, Latimer highlights the importance of a community-based response to criminal behaviour (Latimer et al, 2005:131). This includes:
“(1) identifying and taking steps to repair harm, (2) involving all stakeholders, and (3) transforming the traditional relationship between communities and their governments in responding to crime” (Van Ness, 2008:96). For Edwards and Sharpe (2004:2), “restorative justice encompasses a set of values that guides decisions on policy, programmes and practice that restore communities, not just individuals”.
Smith (2010:258) argues that “restorative justice is an umbrella term that describes a wide range of programmes that seek to address crimes from a restorative and reconciliatory rather than a punitive framework”. Van Ness and Strong (1997:25) contend that “the term ‘restorative community justice’ stresses both the importance of community involvement and the value and potency of community action in crime prevention”.
Building on these definitions, this study investigates a restorative justice programme based at community level undertaken by community-based paralegals (CBPs) in KwaZulu-Natal (KZN). Therefore, the emphasis is on CRJ, beyond community involvement and community-based responses as explained by Latimer et al (2005:13); Van Ness (2008:96) and Van Ness and Strong (1997:25). This study is concerned with the community-based restorative justice approach applied by CBPs in response to domestic violence.
Community-based paralegals are an integral part of the communities they service. As discussed in Chapter 4, they co-create policies, practices and procedures with the community that reflect the local language and culture and the rural areas under traditional leadership where the CBPs and service recipients reside (Edwards and Sharpe, 2004:2). For the purposes of this study, the term ‘community restorative justice’
means a grassroots process driven by the community and implemented by local people from the same community.
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3.2.2.1 The origins of the terms and practices of restorative justice and victim offender mediation Scholars disagree on the origins of the terms and practices of restorative justice and victim offender mediation. Some contend that restorative justice originated in indigenous communities (Braithwaite, 2003:58; Skelton and Bailey, 2006:8; Louw, 2006:161; Alarid and Montemayor, 2012:451), while others (Sawin and Zehr, 2011:41); Van Ness and Strong, 1997:24, Ptacek, 2010:8) note that these terms are of western origin. Braithwaite (2003:58) maintains that all indigenous cultures have some deep-seated restorative tradition. Skelton (2011:469) and Louw (2006:161) contend that restorative justice is evident in the ancient African concept of ubuntu. In contrast, Sawin and Zehr (2011:41) and Ptacek (2010:8) argue that the field of restorative justice began in Ontario, Canada in 1974 when probation officer, Mark Yantzi requested the court’s permission for offenders and victims to confer. This, the authors claim, led to victim offender mediation (VOM). Van Ness and Strong (1997:24) contend that the term ‘restorative’ was coined in 1977 when scholar, Albert Eglash identified three types of criminal justice: restorative (restitution), retributive (punishment) and distribution (therapeutic treatment of offenders).
Skelton and Batley (2006:8) point out that the African traditional system of restorative justice was in place before the Eurocentric justice system was imposed on the indigenous people of South Africa. However, this is not well documented. Understanding the role of paralegals in indigenous communities may shed light on African traditional systems of restorative justice before European intervention.
3.2.2.2 The link between restorative justice and traditional justice system
Most scholars agree that there are links ‘between restorative justice and the traditional justice” systems administered by various indigenous people all over the world (Zellerer and Cunneen, 2001:248; Tshehla, 2004:13; Zehr, 2005:268; Skelton, 2011:475; Cunneen, 2011:113; Alarid and Montemayor, 2012:451). For example, Cunneen (2011:113) notes that early developments in “restorative justice in Australia, New Zealand and Canada were based on indigenous cultures”. Latha and Thilagaraj (2013:2) point to the resonance of restorative justice with dispute resolution mechanisms created by ancient Hindus in Indian villages. Similarly, Skelton and Batley (2006:8) observe that the modern restorative justice system, which became popular in the West during the 1970s, is closely linked to African traditional justice systems.
Zellerer and Cunneen (2001: 248) find it ironic that “after ignoring and more often trying to destroy indigenous legal systems, the criminal justice system is now exploring restorative approaches that have certain commonalities with indigenous justice systems”. More than a decade ago, Zellerer and Cunneen
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(2001: 248) pointed to a gap in the literature on the similarities and differences between restorative justice models and traditional justice systems, and noted that they are not one and the same thing. As far as present- day traditional justice systems are concerned, cognisance should be taken of the impact of European colonial lawmakers on customary law and traditional justice systems in Africa (Ndima and Ntlama, 2009:10) and on other continents.
Zellerer and Cunneen (2001: 250) submit that the sanctions used by indigenous people may go beyond what are considered restorative justice models such as temporary exile and withdrawal. Skelton (2007:231-238) notes that African traditional justice systems and modern restorative justice processes have both similarities and differences. In terms of similarities, both aim for reconciliation and to restore peace and harmony (p.
231) and both encourage party participation and ownership in decision-making (p. 236). In both systems, a rights-based orientation is tempered by group duties as a community (p. 231). Dignity and respect are very highly valued, consistent with the philosophy of ubuntu (p. 231). Neither process sharply distinguishes between civil and criminal justice (p. 233). The simplicity and informality of procedures enables both systems to allow improvisation and story-telling that makes sense to a party to the dispute. On the one hand the outcomes of the two systems are not based on case precedents by other courts (p. 234). On the other hand, both processes produce outcomes beyond the payment of money or goods; symbolic forms of restitution or compensation are also applied (p. 235). The main difference between the two systems revolves around the fact that while modern restorative justice processes tend to be progressive and dynamic, traditional courts are conservative as they seek to preserve culture. Traditional courts are dominated by men and elders, and have thus been criticised for being sexist.
In conclusion, Mills and Grauwiller (2006:365) suggest that restorative justice approaches are adaptable to suit all cultures and that one size does not fit all. Hence, rather than applying an externally-generated restorative justice model to indigenous individuals and communities, a more practical approach is to develop community-based restorative justice programmes in the context of indigenous people’s culture (Zellerer and Cunneen (2001: 249, 259). Toward that end, Louw (2006:162) observes that “African traditional culture seems to have an almost infinite capacity for the pursuit of consensus and reconciliation”.
Ptacek (2010:7-8) argues that a number of different models are housed within the concept of restorative justice. These promote dialogue to meet the “needs of victims, offenders and communities affected by crime”. The three most commonly identified restorative justice practices are VOM, family group
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conferencing, and peace making circles. The models are further discussed in section 3.6 following a review of the philosophy, theories and key elements and principles and the practice of restorative justice.
However, the question remains “as to whether restorative justice is appropriate for processing domestic violence cases”. There has been much scholarly debate on this issue; this is considered in section 3.8.
3.3 The Philosophy Underlying Restorative Justice
It is important to understand the philosophical context of restorative justice. According to Pranis (2004:136), restorative justice is a remarkably successful “philosophy and guiding vision; it sets out a clear set of values to shape people’s actions. As a philosophy, it assists in understanding the concrete, personal harm caused by crime and its effect on relationships and the community. It helps people to design pathways for repair and healing”. As the philosophy of a new paradigm, restorative justice resolves the prevailing paradigm’s serious dilemmas. The “criminal justice system is under severe pressure to demonstrate its effectiveness. Both the public and professionals within the system register high levels of dissatisfaction”. Informal restorative justice is regarded as an alternative to confront these challenges.