Pretoria, 28 October 2002
CHILD JUSTICE BILL (2002)
The Centre for the Study of Violence and Reconciliation has read the proposed Bill and would like to comment on one aspect thereof that relates to Restorative Justice elements. Broadly speaking, the CSVR is satisfied that the Bill sets out the basic principles of Restorative Justice, and that these principles are reinforced throughout the Bill and its provisions. However, when the Bill does mention specific Restorative Justice solutions, we find that it does so in a way that could prove to be limiting.
S 47 refers to Diversion options. S 47(4)(g) refers specifically to “referral to appear at any family group conference or a victim-offender mediation at a specified place and time”. In relation to sentencing, S 65 also refers only to family group conferences and to victim offender mediation. The previous draft of the Bill (2001) that was approved by Cabinet, however, was more general in that S 54 talked in relation to diversion, of “Victim-offender mediation or other restorative justice process”, as did S 88 in relation to sentences.
We believe that the current phrasing is too narrowly defined and could exclude a whole range of other or more appropriate forms of restorative justice process.
Although Restorative Justice is a relatively new form of justice, already it has been practiced throughout the world in a number of different forms. Dr Mark Umbreit, one of the most well known researchers/practitioners in this field, cites several examples of restorative justice: crime repair crews; victim intervention programmes; family group conferencing; victim offender mediation and dialogue; peacemaking circles; victim panels that speak to offenders; sentencing circles; community reparative boards before which offenders appear; victim directed and citizen involved community service by the offender; community-based support groups for crime victims; and community-based support groups for offenders (Umbreit, 2000).
Umbreit uses the term restorative justice conferencing to identify all processes that facilitate restorative dialogue and problem-solving among victims, offenders, family members and other support persons or community members. Within this concept, he argues that there are four established modes of restorative justice conferencing: victim offender mediation, family group conferencing, peacemaking/sentencing circles, and reparative community boards before which offenders appear (Umbreit, 2000: 3).
It should be noted that the term ’victim offender / restorative justice conferencing’ has a wider meaning of which ‘victim offender mediation’ is only one small part.
Restorative Justice is perhaps not so well established in South Africa as it is in the United States of America, Canada, Australia and New Zealand, and there are fewer models that have been piloted and implemented more widely. The best known in South Africa is family group conferencing, and Victim Offender Conferencing (Dissel 2000) with some examples of victim offender mediation (Van Rooyen, 1999).
Restorative Justice is also practiced within traditional African justice practices (Skelton, 2002). Although the practice may not be named as a restorative one it is argued that ‘reconciliation, restoration and harmony lie at the heart of African adjudication’ (Allcott 1977 in Skelton: 499) and that the central aim of a customary process was to acknowledge that a wrong has been done and to determine what amends should be made. The role of these customary processes has been given recognition by the South African Law Commission. It is also important to incorporate the traditional practices and principles into the more formal justice system, and the Child Justice Bill could provide an opportunity to recognise traditional restorative practices, and so develop a system unique and appropriate to South Africa.
Rather than being seen as narrowly defined set of practices, Restorative Justice could be viewed as a broad set of principles that could be applied in a number of different processes. Although two of these practices have become well known is South Africa, this should not preclude the use of other lesser-known practices. Restorative Justice processes should be selected so as to suit the participants in the process, the nature of the case, as well as the location (rural or urban), as well as the belief system of the key participants. Another factor may be the availability and type of restorative process that is available in a particular place at any point in time. Restorative Justice processes are usually run by people trained or schooled in a particular type of practice.
The Child Justice Bill should be inclusive in its approach so that a child may be referred to an appropriate Restorative Justice process. An appropriate restorative justice process would be one that is suitable due to the factors mentioned above. It should also meet the generally accepted principles of restorative justice.
In view of this, the Centre for the Study of Violence and Reconciliation respectfully submits that the wording of S47(4)(g) and S65 be changed so as to refer to ‘family group conferencing, victim offender conferencing, or other restorative justice processes’.
Criminal Justice Programme
Dissel, A (2000) Restoring the Harmony: A report on a Victim Offender Conferencing Pilot Project, Restorative Justice Initiative and Centre for the Study of Violence and Reconciliation, Johannesburg.
Skelton, A (2002) ‘Restorative Justice as a framework for Juvenile Justice Reform: A South African Perspective”, British Journal of Criminology 42, 496 –513.
Umbreit, M (2000) Restorative Justice Conferencing: Guidelines for Victim Sensitive Practice, Centre for Restorative Justice and peacemaking, University of Minnesota, Minnesota.
Van Rooyen, G. H. (1999( ‘Blessed are the Peace Makers: Victim-offender mediation in the criminal justice system – a practical example’. South African Criminal Justice Journal (1999) 12, at 62.