South Africa

Provides a listing of articles on restorative justice developments in South Africa. Articles appear in the order in which they were added to the site with the most recent appearing first.

'They are not scum'

. Restorative justice and the South African Truth and Reconciliation Process.

It has frequently been argued that the post-apartheid Truth and Reconciliation Commission (TRC) was committed to restorative justice (RJ), and that RJ has deep historical roots in African indigenous cultures by virtue of its congruence both with ubuntu and with African indigenous justice systems (AIJS). In this article, I look into the question of what RJ is. I also present the finding that the term ‘restorative justice’ appears only in transcripts of three public TRC hearings, and the hypothesis that the TRC first really began to take notice of the term ‘restorative justice’ after April 1997, when the South African Law Commission published an Issue Paper dealing with RJ. Furthermore, I show that neither the connection between RJ and ubuntu nor the connection between RJ and AIJS is as straightforward and unproblematic as often assumed. (author's abstract)

A humanist defence and critique of the South African Truth and Reconciliation Commission

from the article by Dan Jakopovich in Peace Studies Journal: In order to build more authentic truth and reconciliation commissions in the future, it is also important to acknowledge the largely inauthentic, instrumentalist political foundations of the TRC project.

Abrahamsen, Therese and van der Merwe, Hugo. Reconciliation through Amnesty? Amnesty Applicants' Views of the South African Truth and Reconciliation Commission

While much has been written about the TRC's amnesty process, this study seeks to address a serious gap in the research. Through an empirical evaluation of the perpetrators' own experiences of the amnesty process, this study addresses the need for a better understanding of how the amnesty process worked in practice, how it managed to draw perpetrators into applying for amnesty, how they felt about the process, how their lives were affected by the amnesty process, and whether and to what extent a public, conditional amnesty process served as a vehicle for achieving reconciliation between former perpetrators and survivors of gross human rights abuse and the reintegration of perpetrators into society. In order to complement this insider perspective of the amnesty process, this study also draws from interviews with former TRC staff and lawyers who were involved in every step of the amnesty process; from assisting applicants with their applications to representing them during the hearings. The aim of this report is both to inform further intervention with ex-combatants in South Africa, and to provide some insights that may guide other international efforts to engage perpetrators of human rights abuses in conditional amnesties, truth seeking, restorative justice and reconciliation processes. (excerpt)

Abrahamsen, Therese and van der Merwe, Hugo. Reconciliation through Amnesty? Amnesty Applicants' Views of the South African Truth and Reconciliation Commission.

While much has been written about the TRC's amnesty process, this study seeks to address a serious gap in the research. Through an empirical evaluation of the perpetrators' own experiences of the amnesty process, this study addresses the need for a better understanding of how the amnesty process worked in practice, how it managed to draw perpetrators into applying for amnesty, how they felt about the process, how their lives were affected by the amnesty process, and whether and to what extent a public, conditional amnesty process served as a vehicle for achieving reconciliation between former perpetrators and survivors of gross human rights abuse and the reintegration of perpetrators into society. In order to complement this insider perspective of the amnesty process, this study also draws from interviews with former TRC staff and lawyers who were involved in every step of the amnesty process; from assisting applicants with their applications to representing them during the hearings. The aim of this report is both to inform further intervention with ex-combatants in South Africa, and to provide some insights that may guide other international efforts to engage perpetrators of human rights abuses in conditional amnesties, truth seeking, restorative justice and reconciliation processes.(excerpt)

Activists berate Traditional Courts Bill in South Africa

from sipho Khumalo's article in The Mercury The controversial Traditional Courts Bill, which its critics say will take the country back to the era of bantustans, is set to come under scrutiny at a series of public hearings in KwaZulu-Natal. The sponsor of the bill, the Department of Justice and Constitutional Development, argues that the legislation seeks to affirm the recognition of traditional justice and its values based on restorative justice and reconciliation.

Al-Kassim, Dina. Archiving Resistance: Women's Testimony at the Threshold of the State.

Increasingly today, Fanon's imagination of the postcolonial subject of difference is reconceived in the mode of an international human rights discourse along the lines of reconciliation and reparations. South Africa's Truth and Reconciliation Commission has become the paradigmatic instance of a state mechanism capable of inducing the change from nationalist to politico-social consciousness; so pervasive is its influence that Moroccan and Algerian commissions refer explicitly to the South African example and openly cite it as a model of reconciling the people. This article examines the ways that women's testimony of political violence is called upon in the nationalist postcolony to signify both a primitive sphere outside the boundaries of national memory and public debate and the progressive character of inclusion at the advent of the new state. This paradox is illustrated in the South African TRC's commitment to symbolic reparation and to providing a space for women's testimony despite the refusal of most women to testify. What conceptions of the human are naturalized in state-mandated projects of healing that depend upon such narratives? What new forms of subjection and resistance await the citizens of the modern postcolonial state? It is with these questions about the power of the symbol to deny `voice' while granting the rights of speech that I turn to Asia Djebar's Blanc de l'Algérie, Antjie Krog's Country of My Skull and Zoe Wicomb's David's Story as a counter to the politics of testimony. (author's abstract)

Amy Biehl, South Africa and restorative justice

Anderson, A M. Restorative Justice, the African Philosophy of Ubuntu and the Diversion of Criminal Prosecution

South Africa is in a state of transition; it is a country on the verge of major political, constitutional, social, and economic changes. The paper discusses one such change: the movement towards a process of diversion in the criminal justice system. Diversion is defined as the disposal of suitable criminal cases in a matter other than traditional prosecution. Methods of diversion may include conditional discharges, simplified procedures, or the decriminalization of certain conduct. The paper explores the emerging methods of diversion in South Africa and discusses issues pertinent to diversion for both juvenile and adult offenders. Next, the principles of restorative justice are reviewed and the South African term Ubuntu is discussed. The paper compares principles of Ubuntu to elements of restorative justice and argues that restorative justice could play a major role in the emerging diversion process in South Africa. The paper outlines how the restorative justice model embodies the principles found in Ubantu by illustrating how both encourage consensus, agreement, and reconciliation. Abstract courtesy of National Criminal Justice Reference Service, www.ncjrs.org.

Backer, David. Watching a bargain unravel? A panel study of victims' attitudes about transitional justice in Cape Town, South Africa.

Despite the extended nature of many transitional justice processes, collection of relevant longitudinal primary data, especially at an individual level, is rarely observed as a means of assessing the impact of formal measures. This article reports on a panel survey conducted in 2002–2003 and 2008 with 153 victims of apartheid-era violations from Cape Town, South Africa. During the interval between the two waves of the survey, both undertaken after the Truth and Reconciliation Commission (TRC) completed its work, government policies concerning reparations, prosecutions and pardons undermined the compromises that were central to the TRC process and integral to the democratic transition. The data analysis shows that approval of the unique conditional amnesty offered by the TRC was at first surprisingly high, with many respondents acknowledging its practical rationale, but it fell dramatically by 2008. This decline in support is associated with an increased sense of the unfairness of amnesty and dissatisfaction with the extent of truth recovery. Knowledge of and attitudes about prosecutions and pardons do not appear to be contributing factors, though the results indicate a greater desire for accountability, even at the risk of instability. The findings emphasize the need for rigorous, ongoing evaluation of transitional justice processes to appreciate properly the complex and dynamic nature of individual attitudes and the influence of emergent events. (author's abstract)

Baptista, Daniela and Wood, Catherine. Evaluating the SayStop Diversion Programme: Findings From the First Follow-up Study.

This longitudinal study evaluates the outcomes and impact of the diversion programme developed and piloted on three occasions by SAYStOP (South African Young Sex Offenders Project) between 1997 and 1999. Method. The study set out to determine the effectiveness of the programme through gauging recidivism rates, assessing the impact of the programme content, and exploring the children's experience of attending the diversion programme. Semistructured interviews were conducted with children, who had attended one of the initial three SAYStOP diversion programmes and their caregivers. The interviews were conducted after a minimum time period of twelve month had past since their completion of the programme. Research problems resulted in only six of the 28 boys being interviewed. Results. The results suggested that SAYStOP had developed an intervention useful for holding children who have committed sexual offences accountable and providing them with an opportunity to reflect on their abusive behaviour. The sessions appeared to be fairly successful in accomplishing their individual aims and objectives. In particular, the children assessed seemed to have developed insight into their victim's feelings and realised the importance of responsible decision-making. Group work seemed to be necessary and a beneficial aspect. None of the children interviewed reported any sexual re-offending subsequent to attending the programme. The study highlighted numerous research and methodological difficulties inherent in this type of longitudinal evaluation study. These problems and recommendations for future follow-up studies are discussed. Conclusion. This study, while limited, provides initial support for the continued use of the SAYStOP diversion programme when dealing with certain types of children accused of committing sexual offences. Authors' Abstract.

Batley, Mike and Maepa, Traggy. Introduction.

In this introduction, Batley and Maepa outline issues of public safety in South Africa and the applicability of restorative justice. They then give a brief overview of the monograph.

Batley, Mike. Outline of relevant policies.

This article examines the policy initiatives developed in South Africa to address restorative justice issues. Among the categories analyzed are legislation, South African Reform Commission projects, policy white papers and strategies. Specifically, Batley examines the Probation Services Amendment Act, the Child Justice Bill, and Reform Discussion papers concerning a new sentencing framework, Community Dispute Resolution Structures, and out of court settlements. The policy white papers discussed are the White Paper for Social Welfare and the White Paper on Safety and Security. Batley concludes that these strategies and policies have provided a positive framework that needs to be implemented in order for restorative justice to take hold in the South African justice system, noting that the principles are sound, but it remains to be seen whether their implementation will achieve the desired results. Abstract courtesy of the Marquette University Law School-Restorative Justice Initiative http://law.marquette.edu/cgi-bin/site.pl?2130&pageID=1831

Bertelsmann, E.. Restorative Justice in Sentencing: South Africa

In a recent sentencing decision in a murder case, Judge E. Bertelsmann of the High Court of South Africa wrote of the importance of restorative justice in the South Africa context. The full decision is presented here with a downloadable version attached.

Boraine, Alexander. Truth and Reconciliation Commission in South Africa Amnesty: The Price of Peace

This chapter examines the national and international context of the South African Truth and Reconciliation Commission. Topics covered include choosing the time frame to be covered by the Commission investigations, the type of proceedings to be undertaken, and the granting of amnesty.

Borer, Tristan Anne. Gendered War and Gendered Peace: Truth Commissions and Postconflict Gender Violence: Lessons From South Africa.

This article argues that the South African Truth and Reconciliation Commission (TRC), whose aim was to uncover the truth of the atrocities perpetrated under apartheid and develop a framework for reconciliation, failed to reveal the truth about women's experience of sexual violence under apartheid as well as continued "peacetime" violence against women in South Africa. Although it is increasingly evident that women are vulnerable to rape by soldiers from the “other” side as a means of showing the failure of their men as protectors, it has also become clear that women are being raped by soldiers from their own country and by peacekeepers; in both cases, women are being raped by soldiers who are supposedly their protectors. The TRC failed to recognize and address this ongoing violence against women in war and postwar because of the priority given to civil and political rights violations over economic and social rights violations, the adoption of a gender-neutral approach to truth collection, and the criteria used for dispensing amnesty. This article also identifies some consequences of the failure to expose the truth about sexual violence against women during and after apartheid, including its impact on the government’s reparations policy and continued “peacetime” violence against women in South Africa. A person could only be considered a victim and eligible for reparations if he/she came forward to tell of the nature of the victimization. Many victims of sexual violence undoubtedly faced a difficult choice, i.e., to risk estrangement from their families and social exclusion, or making themselves ineligible for reparations. Thus, the TRC failed to set the stage for the creation of a peacetime democratic culture in South Africa with a firm foundation in respect for women’s rights and a priority response to women’s distinctive vulnerability to sexual assault and economic hardship. (abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov).

Botha, M. Elaine. Christian Scholarship for Reconciliation? The Free University of Amsterdam and Potchefstroom University for Christian Higher Education

The theme of this chapter deals with the question of whether the two mnodels of Christian scholarship pursued by the two institutions [Free University and Potchefstroom University] actually contributed to societal reconciliation - reconciliation within racial and ethnic tensions as they have become apparent in South Africa. This narrows the focus of of reconciliation to a societal and political focus, which in turn shapes the question of whether a university as an academic community can or ought to in any way contribute to or become involved in the resolution of such tension. (excerpt)

Botman, H. Russel. The Church Partitioned or the Church Reconciled? South Africa's Theological and Historical Dilemma

This chapter is interested in the occurrence of the theme of reconciliation as it has become an instrument of dealing with the intricacies of difference and unity in the apartheid and postapartheid context. It investigates a number of theological texts that have emerged within the South African context that are of particular significance in the examination of reconciliation as theme in the context of racial realities. (excerpt)

Bukurura, Sufian Hemed. Protecting Prisoners’ Rights in Southern Africa: An Emerging Pattern

This work attempts to outline different mechanisms that have recently been put in place in recognition and protection of prisoners' rights in some African countries. These initiatives range from international instruments and regional measures, national mechanisms such as constitutional provisions, the establishment of offices of the ombudsmen, to favourable correctional services' legislation. How courts have been called upon to intervene in the protection of prisoners' rights in different countries in the region will also be examined. What emerges from both legal instruments and court decisions is that the way in which prison authorities and staff handle inmates under their care has come under strict scrutiny in recognition of inmates' rights. What this means in practical terms is that prison officers not only have to be increasingly aware of and sensitive to prisoners' rights, they also have to change their working practices to conform with these important individual rights and freedoms. These are the challenges facing prison authorities and personnel in the new millennium. (excerpt)

Buur, Lars. Monumental History: Visibility and Invisibility in the Work of the South African Truth and Reconciliation Commission

This paper will explore one of the most striking features of the South African Truth and Reconciliation Commission (hereafter SATRC): the extreme public exposure of the SATRC and simultaneous lack of knowledge about what the commission actually did while "bringing truth to light", "ascertaining the facts," "revealing" or "finding the truth about the past". (excerpt)