By Mike Batley, Executive Director of the Restorative Justice Centre and member of the Gauteng Forum

Leader by Rajesh Latchman:

South Africa seems to be caught in the grip of another upsurge of crime. Daily headlines in most newspapers make for scary reading and officials responsible for safety and security of citizens admit that while statistics show decreases in some types of reported crimes, the general feeling is that, the crime level is still too high. Where are we going wrong? What impact does the high levels of structural inequality in our society have on the levels of crime? Does the “get-tough” approach work?

Well, if we were on the right track in our response to crime, people would feel safer…but how to get there? Do we need a new or adjusted road map to get us to a point of safety in South Africa and what are some of the options we have? This month, Mike Batley argues that responses to crime and violence should be seen as part of the quest for social justice and respect for human dignity, and should involve both direct participants and the wider community. A novel approach? Maybe, but bear in mind that the principles of restorative justice have been part of indigenous governance for centuries before the imposition of the hegemony of modern western law.

So maybe it is time for us to look at crime from a new perspective and incorporate the principles and values of indigenous knowledge and governance to make a real impact. Impact that helps us to return to the roots of Ubuntu in our daily lives, the way we view and treat each other and how we address the inequality in our society that denies human beings of their inherent dignity. Crime is fundamentally about disrespect and Ubuntu is our most powerful weapon in fighting that disrespect. Let us honour this fundamentally African concept and practice to make a difference to our own safety and security.

1. INTRODUCTION

South Africa has one of the most progressive Constitutions in the world, entrenching extensive rights to all its citizens and recognising the paramount importance of respect for human dignity. Yet, South Africa is also one of the countries with the highest rates of crime and violence.  To understand and respond to this problem, therefore, it is clearly necessary to look at wider societal factors.

What does Restorative Justice involve?

Restorative justice has been defined as “a process to involve, to the extent possible, those who have a stake in a specific offence and to collectively identify and address harms, needs and obligations, in order to heal and put things as right as possible.”  (1)

“Putting things right” consists of two dimensions:
• Address harms (primarily those of victims, but also those of communities); and
• Address causes (which we understand to mean at all levels: personal, interpersonal, environmental and societal). (2)

In any particular scenario, once the needs of those who have been harmed have been addressed, the attention must focus on such questions as “why did this happen?” and “what can we do to prevent it from happening again”. The answers to these questions could range from referring a perpetrator to a programme dealing with drug abuse and vocational skills, to initiating community responses about entrenched patterns of violence in a community.

2. SOME CONSTITUTIONAL FOUNDATIONS

Howard Zehr, regarded as one of the pioneers of restorative justice, has stated that crime is fundamentally about disrespect . Conversely, justice is primarily about respect (3). In some religious traditions, and in keeping with the African tradition of Ubuntu, this is further defined to include:

• respect for life;
• respect for the property of others; and 
• respect for the feelings of others.

The Constitution of the Republic of South Africa reflects these perspectives in many respects, but particularly in the following provisions of the Bill of Rights (Chapter 2):

Article 10. Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.

Article 12. Freedom and security of the person

(1) Everyone has the right to freedom and security of the person, which includes the right-
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.

The following extracts from judgments of the Constitutional Court illustrate how the court has interpreted these provisions:

“The value of dignity in our constitutional framework cannot therefore be doubted. The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts it too to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings. Human dignity therefore informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. ….dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected.” (4)

“The enactment of the Constitution has created a framework within which significant changes can be brought about in the criminal justice system. The rights entrenched in Chapter 2 are available to ‘every person’; that includes children and adults, women and men, prisoners and detainees. The Constitution clearly places a very high premium on human dignity and the protection against punishments that are cruel, inhuman or degrading: very stringent requirements would have to be met by the State before these rights can be limited. In addressing itself specifically to punishment, the Constitution ensures that the sentencing of offenders must conform to standards of decency recognised throughout the civilised world. Thus it sets a norm: measures that assail the dignity and self-esteem of an individual will need to be justified; there is no place for brutal and dehumanising treatment and punishment.” (5)

While these examples refer directly to upholding the human dignity of offenders, it is clear that the Constitution refers equally to the rights of victims in this regard. Restorative justice is a practical response that seeks to affirm the innate dignity of both victims and offenders; it also provides a way of making these Constitutional principles real, and of linking criminal justice to social justice issues.

3. A HELPFUL ANALYSIS OF CRIME AND CONFLICT

While the reasons for the high levels of crime, especially the extremely high levels of violent crime are the subject of intense debate, the following simple diagram provides a useful frame of reference:

	Structural violence Disparities, disabilities and deaths result when systems, institutions, policies or cultural beliefs meet some people’s needs and human rights at the expense of others. Structural violence creates relationships that cause secondary violence to occur:
	SECONDARY VIOLENCE
	Self- destruction Substance abuse Suicide Depression Internalized oppression		Community Destruction Crime Interpersonal violence Domestic violence Rape		National and International Destruction Rebel movements Terrorism Civil wars Revolutions Coups Wars

Reactions and responses to structural violence are secondary violence (6)

This analysis places crime and violence squarely in the realm of social justice and the legacies inherited from the past. It also regards general violence and crime as part of community destruction, removing the sharp line that usually divides these two. It also:

• shows how violence can be directed internally, at a community level and at a national/international level;
• provides an explanation for the high levels of e.g. drug abuse, domestic violence and other crime in impoverished communities;
• adds credibility to the view that South Africa is at present involved in low level warfare.

One of the most helpful aspects of the diagram is that it shows the futility of relying entirely on “get tough” approaches to crime, as these usually overlook entirely the context of structural violence and injustice from which crime and violence arise and certainly do nothing to address it – on the contrary, they often perpetuate it.

Clearly, restorative justice is not a magic wand to change this kind of scenario. Restorative justice is one component of building a more just society. But in being at the sharp end of dealing with the reality of a crime or violent incident, we must see responding to crime and violence as part of the quest for social justice, not as separate from it.

3. CONCLUSION

This approach thus provides the basis for engaging with victims and their needs, for engaging with offenders and for connecting with broader crime prevention strategies. It stresses the need for direct participants and the community to be involved in working out a response to individual incidents and to crime generally. Restorative justice fits well with the aims and values of the social development approach. By its very nature, it nurtures hope. It needs the active support of all players in the social development field.

1. Zehr, H. (2002) The Little Book of Restorative Justice. Intercourse, Illinois Good Books, p 34
2. Zehr, H. (2002) The Little Book of Restorative Justice. Intercourse, Illinois Good Books, p 34
3. Zehr, H. (2002) The Little Book of Restorative Justice. Intercourse, Illinois Good Books, p 36
4. In Dawood and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) the following was stated at para 35 by O’Regan J, who delivered the judgment of the Full Court
5. In S v Williams and Others 1995 (3) SA 632 (CC) at para 76 – 77
6. The Little Book of Strategic Peacebuilding by Lisa Schirch, 2004, Good Books, Intercourse, PA, P24

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