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'

 

. Youth violence in South Africa: the case for a restorative justice response.

Crime presents a fundamental challenge in South Africa. Particularly disturbing is the prevalence of violence committed by and against young people. The main purpose of this article is to look at how South Africa should deal with the issue of youth violence. It argues that while structural violence constitutes a significant contextual cause of the phenomenon, a more proximate and specific cause lies in young people’s exposure to direct violence in their schools, homes and communities. In many cases, therefore, simply sending young people to prison – where they may experience even greater levels of violence – is not the answer. This article thus examines the potential merits of restorative justice as a response to the problem of youth violence, focusing particularly on the 2009 Child Justice Act. This research is based on fieldwork in South Africa and draws upon both the author’s qualitative interview data and a range of surveys with young people conducted by the Center for Justice and Crime Prevention in Cape Town. (author's abstract)

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

In this essay, I will assess the South African TRC from a radical humanist, peace-building perspective. Instead of the usual approach which judges the TRC according to its success or failure to achieve the objectives of ―retributive justice,‖ I will look at the TRC's work from the perspective of humanistic ethics, of ―restorative‖—or, in fact, ―transformative justice‖—and its specific goals. In the course of this analysis, I will illustrate how relocating the ideological vantage point in this way leads to a creative new (and very marginalized) set of objectives and benchmarks. These are generally applicable not just to the work of the South African TRC, but to future truth and reconciliation initiatives as well.(Author's abstract)

. Addressing Victim's Harm: the Role of Impact Reports.

This Article focuses on the sentencing phase in child sexual abuse cases, and, in particular, evaluates the practice of receiving information in the form of a victim impact statement. It then highlights South African courts’ recent reactions to victim impact statements. This Article concludes that a court open to therapeutic jurisprudence principles, such as embracing an ethic of care, can play a vital role in addressing victims’ harm. (excerpt)

. Fractured freedom: State discourses about crime in South Africa, 1976-2004.

This dissertation asks how South Africa’s transition to democracy affected the governments perceptions and treatment of ‘criminals’, and how crime control concerns have changed or not changed between 1976 until 2004. I trace both continuities and changes, breaking with the conventional concept of ‘post apartheid’ inaugurating a fundamentally new era in respect of penality. I analyze what the state says about crime, linking it to the wider field of crime control, criminal justice practices and the political debates surrounding these. By framing crime policies within a socio economic (or more structural) framework I highlight how crime discourse is reflective of, and transformative of, other spheres. I analyse the ways in which crime policies are based on certain political assumptions, use racial or class categories, and are linked to specific political projects. Two of the themes addressed are the changing relationship between: crime and politics as the ANC progressed from a resistance organisation to the government; and that between crime and race as blacks went from being the oppressed group to being the governing group. I trace the ironies and hypocrisies involved as these relationships changed. I use Foucault’s conceptions of power and governmentality as my analytical framework arguing that the various state policies adopted to deal with crime are technologies used in the exercise of power. Power is relational, not something that can be handed over, and technologies of rule can be used in support of quite different political rationalities, such as apartheid, neoliberalism, neo-conservatism, communitarianism, and developmentalism. Because neo-liberal ideology meshes well with other ideologies it could be melded with apartheid rationalities of rule as well communitarian ones in the ‘new’ SA. I argue that the regimes of apartheid and the ANC democracy have elements in common insofar as crime control is concerned, largely because they both failed to address the structural causes of crime. As a liberation movement the ANC failed to develop any in depth policies on crime and when it became the governing party, faced with the ‘spectacle’ of crime, it hastily cobbled together an eclectic range of policies. (author's abstract)

. Negotiating transition: The limits of the South African model for the rest of Africa.

The seminar, ‘Negotiating Transition: The Limits of the South African Model for the Rest of Africa,’ explored the impact that the South African model has had in other contexts, as well as the effect that compromised political deals such as GNUs have on the possibility for effective justice post-conflict. Some of the questions posed included: Have these ‘peacemaking tools’ simply become tools for impunity? Have they shifted the peace and justice debate by lessening the likelihood of prosecutions and accountability, or hampering political will and conditions for real redress in return for a promise of short-term gains? Are they the only realistic options available to ensure an end to violence in internal conflicts? The seminar examined the options available for political actors and transitional justice practitioners to widen the scope and timing of their engagement, by assessing the possibility for justice and impunity concerns to be addressed during the formulation of political settlements. (excerpt)

. Race and reconciliation in South Africa: A multicultural dialogue in comparative perspective.

In January 1999, scholars from Europe, North America and Africa assembled at the University of the Western Cape (UWC) for a conference on race and reconciliation in South Africa. The conference was inspired by the collapse of apartheid in 1994, Nelson Mandela's rise to the presidency, and the formation of the Truth and Reconciliation Commission (TRC), which has now revealed to the world some of the awful reality of the apartheid era. While the TRC sought truth as a basis for racial reconciliation in South Africa, the conference at the UWC sought to create a multicultural, scholarly dialogue on the history, theology, philosophy, and politics of race and reconciliation in South Africa. Our aim was to enhance our understanding of South Africa's past and the important issues that the new South Africa faces in the future. This book is the product of that conference. (excerpt)

. Reparations advocacy: The case of Khulumani Support Group

I was asked to share my insights on the topic Reparations Advocacy: The Case of Khulumani Support Group, drawing on my experience with Khulumani in the Western Cape (WC) over the past 11 years. In my paper I will track the organization from its humble beginning to the present. Some of the campaigns that I will deal with are national campaigns and others are regional initiatives. Both have interesting and important lessons for victims’ groups starting up or operating in African countries and elsewhere in the world. (excerpt)

. 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)

. ‘This thing called reconciliation…‘ forgiveness as part of an interconnectedness-towards-wholeness.

Regular reference is made, within the discourse around the South African Truth and Reconciliation Commission, to the fact that ubuntu, an indigenous world view, played a role in the process. This paper tries to show that despite these references, important analysts of the TRC (as well as many South Africans) had insufficiently accounted for this worldview in their critical readings of the Commission’s work and therefore found aspects of the process incoherent and/or morally and legally confused. I am not arguing that the TRC was not a deeply flawed process, but want to establish how powerfully this indigenous world view brought a coherency that not only enabled the TRC to do its work without incidences of revenge, but imbued politically and legally trapped concepts with new possibilities. The pervasiveness of this world view within eg. the second round of TRC testimonies is noticeable and show how often the critique on the TRC fails to take this dominant role into account and how many, seemingly contradictory or confusing, positions become coherent when regarded within this worldview. This view of interconnectedness, consistently expressed throughout the life of the commission, has wide implications for the interpretation of healing, the asking of amnesty, the rehabilitation of perpetrators, the interdependence of forgiveness and reconciliation in the process of achieving full personhood within a healed society. In the footsteps of Richard Bell, this paper locates this world view within a particular framework formulated as ubuntu by Desmond Tutu, as communitarianism by Kwame Gyekye, as ethnophilosophy by Paulin Hountondji etc. The paper also tries to understand how this interconnected moral self is formed and who the community could or should be that influences this moral self. (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.

Abe, Toshihiro. Christian Principles in a Social Transition: The South African Search for Reconciliation

The South African Truth and Reconciliation Commission (TRC) has been argued as one of the prominent cases by which post-confl ict societies coped with diffi culties. Discussions have tended to criticize its effectiveness and limits. That tendency is more marked when the discussion is on the applicability of that kind of activity to another society. This paper features the particularity of South African society without particular evaluation of the TRC, especially dealing with its religious implication. This standpoint is effective for the analysis of the transitional society which is identifi ed from its relative lack of legitimacy on due process. This paper traces some religious discourses, which have affected the TRC body implicitly and explicitly in historical transition. Two prominent fi gures to whom I give my attention are Desmond Tutu and Charles Villa-Vicencio. However the two Christians’ discourses have incompatibilities with each other to some extent, both still show a tangency which can be interpreted as a unique function in a sheer estrangement of post-Apartheid transitional society. Tutu’s Ubuntu (cultural syncretism) and Villa-Vicencio’s restorative justice through negotiation (political secularism) are considered in this context, and both suggest that they let the ‘divided’ people negotiate over confl icting plurality in a transitional society. Author's abstract.

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.

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.