Restorative justice in South Africa could benefit both victims and perpetrators of violence

4 Oct 2022

Daily Maverick on Monday hosted a webinar titled ‘The Role of Restorative Justice: Dealing with High Levels of Violence in our Country’. Maverick Life contributor and senior researcher Joy Watson facilitated the conversation with peacebuilding consultant Friederike Bubenzer and former public protector and Law Trust Research Chair Professor Thuli Madonsela.

https://www.youtube.com/watch?v=MwUrtHNxYcA

An annually updated statistics report from the World Population Review shows South Africa as currently ranking fourth in the world for cases of rape, and as having a higher murder rate than conflict zones such as Syria, Somalia and South Sudan.

Peacebuilding consultant and former senior project leader for the Institute for Justice and Reconciliation, Friederike Bubenzer, said some South Africans are looking to restorative justice as a step towards peace.

South Africa is “severely scarred” by hundreds of years of oppression and human rights violations, and the country is struggling to grapple with the ongoing cycles of violence and damaged relationships.

However, there is a “striking appetite” for rebuilding and restoring harmony across the country and the continent at large, according to Bubenzer.

A growing topic in the search for solutions is the “controversial yet promising” approach of a restorative justice system. This concept is manifesting in many ways, at a micro level among small communities, and at a macro, systemic level, she said.

Professor Thuli Madonsela, former public protector and Law Trust Research Chair, said restorative justice is pertinent to consider in South Africa’s socio-economic context because “at the heart of it, the restoration for the victim and for what they have lost is not at the heart of our normal justice system”.

Read more in Daily Maverick: "South Africa’s justice system is showing signs of rot"

What is restorative justice?

It is quite complex, said Madonsela, and definitions found online do not properly explain the concept. It is based on two main components — restoring the victim to be as close as possible to their state before the crime, and achieving justice by holding the perpetrator accountable for their actions.

Beyond that, restorative justice places emphasis on rebuilding relationships and working toward reconciliation between the victim and the perpetrator, as well as between the perpetrator and the community, she said. But most importantly, restorative justice places the victim at the centre of the conversation, compared to our “normal” justice system that places the state and the salvaging of public interest at the centre of the criminal justice system.

Madonsela said the current justice system has failed South Africans time and time again, particularly the indigenous African communities, because “the tables are turned on them”.

In the eyes of the Magistrates’ Court, she said, all they see is an “average” African and they are treated as merely a witness to the crime rather than as the victim. And the perpetrator doesn’t even need to speak because the lawyer does it all for them.

“They become strangers in their own land,” Madonsela said. “The criminal may or may not go to jail, but in the end, the victim gets nothing.”

The institutionalised justice system sees restorative justice as an optional, voluntary process that is a “nice thing to do”, she said, unlike in traditional African philosophies such as Ubuntu.

“Repairing the immense, multilayered trauma of rape and sexual assault, for example, should not be an optional, separate addition to the justice system,” Madonsela said. “It needs to be compulsory.”

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A controversial debate

However, it is a complicated issue because there is no one-size-fits-all approach to healing, said host Joy Watson. The concept is particularly sensitive in instances of rape and sexual assault, she said.

Restorative justice has worked in cases where the victim has asked to engage with the perpetrator because of things they need or want to know in order to heal, she said. But the victim does not always seek this and it is not always beneficial.

“We have to also acknowledge that in violence against women and children, there has been resistance to the restorative justice movement because of the risk of keeping violence behind closed doors and causing secondary victimisation,” Watson said.

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In bringing the victim and the perpetrator together for reconciliation, there is also a risk that the power dynamics or trauma could be intensified.

Madonsela mentioned a critique of the restorative justice movement by feminists in which the approach has moved away from restoring the victim to how they were before, and the process has rather become a direct transition from truth to reconciliation. The restoration component is essential, she said – perpetrators need to work to amend their actions in order for there to be justice, and eventually peace.

But most importantly, the victim needs to be willing, Madonsela said.

Additionally, another limitation of restorative justice is that many perpetrators have lost the capacity for empathy or remorse entirely, because they have been hardened by their own adversity, she said.

Bubenzer said she does not encourage reconciliation directly because it has historically been a “problematic approach that has not brought us to where we should be”.

“Rather, I like to view restorative justice as a lens through which we regard the post-conflict repair of societies that have been affected by violence,” Bubenzer said. “We can use it broadly to address structural violence to find a means to justice.”

The potential of restorative justice

Acknowledgement of an apology from white South Africans on behalf of themselves as well as their ancestors is one area that needs a lot of work. But the tension is not just between two groups – it’s between multiple groups and it continues to become more and more complex, in the Western Cape in particular, Bubenzer said.

“This is all about our memory and how we cope with that memory… Trauma has shaped the narratives of South Africans and this is not acknowledged nearly enough.”

Bubenzer said restorative justice addresses South Africa’s dark historical legacy in an “inherently non-violent, victim-centred and trauma-informed manner”. Restorative justice provides a community-based method, focusing on equipping facilitators to work with perpetrators, victims and the communities they are in.

Read more in Daily Maverick: "Overcoming historic trauma – all South Africa needs is love (and compassion)"

There is “so much capacity to restore, to repair, to rebuild”, she said, adding that restorative justice is also being seen in other African countries.

In Rwanda, for example, communities have implemented a model for socio-therapy in which leaders are trained to accompany groups of people through rebuilding and repairing relationships, according to Bubenzer.

“The goal is for people to coexist side by side through storytelling and reframing memory so that the past doesn’t disrupt the present quite as much, as it does in so many African countries,” Bubenzer said.

Madonsela agreed that restorative justice seems to provide many positive tools in the fight against violence and persisting aggressions stemming from South Africa’s past.

Violent crime dehumanises not only the victim, but also the perpetrator, Madonsela said.

“When you reconcile with another human face-to-face and understand the harm you have caused, your own humanity can be redeemed in that moment.”

Bubenzer said the restoration of the dignity of South Africans is essential to the healing of this country.

“There is a growing sense in South Africa that restorative justice is what we need,” Bubenzer said. DM

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South Africa

What is restorative justice?

A controversial debate

The potential of restorative justice