A Restorative Justice Solution in the Fields Hill Truck Matter?

by admin | Sep 30, 2013 | Uncategorized

The skilful knight is not warlike. The skilled strategist is never angry. They who are skilled in overcoming the enemy never join battle.

-Non-Violence, the history of a dangerous idea

Holla!

I blog in peace.

First up a kind note to everyone that our Johannesburg ADR Program in Mediation and Arbitration scheduled for 7-11 October 2013 has been postponed to 21-25 October 2013, primarily due to my involvement in the matter of S v Sanele May the Swazi national who drove the truck in the Fields Hill Truck Accident. Please note we do currently have 50{db4c0d2959e302539fe96b7aa3161328ff99665e8aefb664444410c6414dd29e} bursaries available for this Program, as well as our main Distance Learning Program. Please enquire at adr@mediatorsa.co.za

We are working hard in The Fields Hill Truck Matter alongside Professor Mdletshe, to advocate for an independent fact-finding process as well a as restorative justice process. The following excerpt from my draft affidavit in support of his bail application sets out the legal framework underpinning our advocacy in this matter:

“

1.1        The Restorative Justice National Policy Framework, 2010 published by the Department of Justice and Constitutional Development which was in fact adopted by the JCPS cluster. I attach a copy thereof marked annexure “A” I refer this honourable court to paragraph 2.1 which defines Restorative Justice as “ an approach to justice that aims to involve the parties to the dispute and others affected by the harm (victims, offenders, families concerned and community members) in collectively identifying harms, needs and obligations through accepting responsibilities, making restitution, and taking measures to prevent a recurrence of the incident and promoting reconciliation; this may be applied at an appropriate stage after the incident”. Paragraph 2.2 defines Alternative Dispute Resolution Mechanisms (ADRM) as the disposal of disputes outside of formal court proceedings. The processes and mechanisms may or may not include a Restorative Justice approach. Paragraph 3 refers to the United Nations Handbook on Restorative Justice Programmes which are defined as “any process in which the victim and the offender, and where appropriate any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator.” Such processes include victim offender mediation, conferencing, panels, circles, dialogues and conversations. Paragraph 3.3 refers to restorative outcomes as including ADRM mechanisms such as diversion, non-custodial sentences, restitution programmes, home-based supervision, correctional supervisions/community corrections and parole. Annexure “A” to this document sets out the matrix of Roles and Responsibilities

1.2        The United Nations Restorative Justice Charter, of which South Africa is a signatory

1.3        The South African Law Reform Commission which emphasizes Restorative Justice and ADR in its law reform objectives

1.4        The Service Charter for Victims of Crime in South Africa which refers to “the cultivation of a human rights culture in which the focus is gradually shifting from an adversarial and retributive criminal justice system to that of restorative justice. I attach a copy marked Annexure “B”

1.5        The National Prosecuting Authority Predetermined Objectives which also includes ideals of Restorative Justice. I attach a copy marked “C”

1. It is to be noted that internationally, significance is placed on the shift towards restorative justice. The book Restorative Justice: Politics, Policies and Perspectives, Van Der Spuy et al is a collection of essays on restorative justice and sets out the following: “Restorative Justice has been one of the most significant developments in criminal justice practice and criminological thinking to have emerged over the past two decades. It offers both a philosophy of conflict resolution and model of justice.” Adam Crawford, University of Leeds
2. Indeed our own democracy was forged through a restorative justice process even in the face of the commission of heinous crimes
3. It further sets out that the basic Purpose of Law is the creation and maintenance of the condition of peaceful life of citizens. Shane Claiborne writes that Peace is not the absence of conflict but the presence of justice. A counterfeit peace exists when people are pacified or so distracted or weary that all seems calm. True peace does not exist until there is justice, restoration and forgiveness. Peacemaking is not a passive thing. It is about interrupting injustice without mirroring injustice. Disarming evil without destroying the evil-doer.”

We are working tirelessly to raise the profile of restorative methods of dispute resolution like mediation, in all disputes from Family and Divorce Matters, to Commercial Matters, Community Matters and Workplace matters.

We have many matters in low cost housing construction that could be resolved with wisdom and grace through dialogue processes. I took one such matter, which involves 150 displaced families, to the Ministry of Human Settlements last week. I was so encouraged by the ease with which I was able to gain access to those in the ministry, and their willingness to engage. These are hallmarks of a healthy constitutional democracy. And this may not always be the case. But it is also a product of civil society activating for access and dialogue. We must do so.

I was interviewed last week on SABC’s Cutting Edge on Restorative Justice. Please look out for it on 10 October 2013.

Exciting news today: Gerhard Borstlap joins ADR Network SA as a full time mediator, researcher and corporate strategist. Gerhard is a graduate with a BA in Law and International Relations. He has working experience in Academic Research, International Relations and Diplomacy as well as International Emergency. Moreover, he has a brilliant mind and a kind heart with a passion for human rights. He is also a philosopher in his own right. You can follow him on twitter @gborstlap.

You can follow me on twitter at @sheena_ostjon

Until next time. Peace

Sheena

Peace, Beauty and Justice

by admin | Sep 3, 2013 | Uncategorized

Holla!

I blog in peace including a short vlog too:) Below is my text on the talk on Transforming Justice I presented at Campus Harvest UKZN this weekend

http://www.youtube.com/watch?v=VZQFDTmdrbo

Please send your thoughts.

Peace

Peace, Beauty and Justice 

Everyone shall be remembered, but each became great in proportion to his expectation. One became great by expecting the possible, another by expecting the eternal, but he who expected the impossible became greatest of all.

Kierkegaard

Tim Keller writes that the Biblical idea of justice is comprehensive and practical, but it is also high and wonderful. God is reconciling humanity to himself and as a result of this great transaction, all things to himself. He is bringing all things in heaven and on earth.

Colossions 1:20; Ephesians 1:10

Seek the peace and prosperity of the city to which I have carried you into exile. Pray to the Lord for it, because if it prospers, you too will prosper 

Jeremiah 29:7

My own view of justice is that accomplishing justice means to restore humanity to the original template. That we are all restored to who we were created to be both individually and in relation to the world around us.

In reality the world understands “justice” primarily as the “bad” guys getting what they “deserve”. Poor choice-makers, offenders, are brought to book or punished. And we accomplish this primarily through adversarial, dualistic or competitive processes. So in court, we pit humans against one another and see who wins. The win, then, is based on who has the best lawyer which is often a product of who can afford the best lawyer. So access to justice becomes about money.

We apply similar competitive styles of dispute “resolution” is our schools, workplaces and our marriages.

There is varying imagery in scripture to describe the making of the world. It is sometimes compared to the building of a house (Isaiah 66:1 talks about the world as a Royal Dwelling)

In the psalm the world is described as a house being built on foundations of righteousness and justice.

Jewish scholar Weinfield refers to the imposition of equality, order and harmony upon the cosmos and the elimination of the forces of destruction and chaos.

There is also the imagery of weaving a garment. The sea (in Psalm 104:6), the clouds (Job 38:9), the lights of the sky (Psalm 104:1) and all the forces of nature (Psalm 102:26) are all depicted as garments that God wove and that he wears.

Woven cloth consists of innumerable threads interlaced with one another conveying the importance of community, family and relationship.

The threads must be rightly and intimately related with one another in literally a million ways.

God created all things all things to be in a beautiful, harmonious, interdependent, knitted, webbed relationship to one another.

Rightly related humans for a community. Rightly related humans form family.

Peace

Shalom is often translated as peace. But it is more than that. It means complete reconciliation, a state of full flourishing in every dimension-physical, emotional, social and spiritual-because all relationships are right, perfect and filled with joy.

When your body is healthy, especially when you are young, you have energy, strength and beauty, because all the parts of your body are working in unity.

But when you are injured, parts of your body may be out of alignment with others. Cancers Cells work not with, but against the other systems of the body.

When the parts of your body fail to work interdependently, you experience the loss of physical shalom or well-being. And when you die, you literally unravel.

When you experience a season of mental well-being, it is because the things your emotions want are those of which your conscience and reason approve.

When your inner shalom unravels you may experience guilt, feeling conflicted or anxiety.

When society disintegrates, when there is poverty, crime and family breakdown, there is no shalom.

When people share resources and work with each other so public resources work the environment is safe and beautiful, the schools educate and the businesses flourish then the community is experiencing shalom.

When people with advantages invest in those with fewr the community experiences civic prosperity or social shalom.

But this is not the state of the world.

Losing shalom….

Genesis speaks of how humanity walked with God and served him in Eden. Under his rule and authority, it was paradise. There was supernatural provision and rest. We weren’t coach potatoes though. We were called to tend the Garden.

Under the absolute reign of God all things reach their potential and flourish in perfect harmony.

This ended when humanity turned away from God. They believed the lie that they could become like God. The irony of the deception and the lie lay in the fact that they were already like God, made in his image. They rejected his rule and kingdom, and sin entered to deface and mar everything.

When we became estranged from God, we became alienated from our true nature and from each other.

Primal self-absorption has led to profound social evil, war, crime, family breakdown, oppression and injustice.

The world is full of hunger, sickness, aging and physical death.

Was the cross, Jesus blood enough to restore us to the garden? Yet 99% of Christians live outside of the finished work, as if still kicked out of the Garden.

Justice and Shalom

To do justice means to live in a way that generates a strong community where humans flourish.

Where the fabric has broken down, weaker members of society are falling through it.

We need to repair the fabric. We need to reweave it. We need to weave ourselves into it-socially, relationally, financially and emotionally. We are the miracle workers. The agents of Justice. The game changers.

We are Christ’s ambassadors: to press our time, goods, power and resources into others.

A man comes across an ancient enemy wounded and bleeding. Many have past him by. The man stops to tend to his wounds, puts him on his donkey and takes him to an inn to recover. Jesus tells the story and instructs us to do likewise.

Luke 10: 25-37

We destroy enemies by making them friends. We fight for justice by contending for restoration of victims and offenders alike.

We serve a king that not only set free the oppressed, but oppressors too.

In Luke 22:51; Matt 26:37 Peter cuts off the ear of one of the servants of the High Priests who arrest Jesus. “Put up your sword Peter” And Jesus heals his captor. History is riddled with Peters who have failed to head the call of the servant King, to put up their swords. And the extent of perpetual violence is palpable. Jesus loves his enemy. He heals his enemy.

How do we love our enemies.

Beauty

Some thoughts on Beauty:

When we think of beauty, we tend to think of aesthetic value.

Yet, although we all perceive beauty through our senses, it permeates every sphere of life-musicians hear it in a well composed symphony, artists see it in a known painting, scientists may perceive it in an ordered array of patterns in nature .

Yet despite its pervasiveness and numerous attempts by various fields of study, beauty escapes explanation, and even comparison. Can we say that Beethoven’s 5th is more beautiful  than the Mona Lisa, for instance?

We cannot define beauty as a ‘thing’, for actions can have an element of beauty-the loving embrace of a mother, for instance, can encompass beauty.

Nor does beauty depend on its surroundings. Indeed, that which is beautiful is often juxtaposed with horrific events surrounding it-history is riddled with events where the the testimonies of people like Anne Frank and Victor Frankl in the holocaust, etc

Indeed, the Christian faith is symbolized by the cross, a symbol of one of the most terrible ways a person can die. Yet the cross symbolizes the most beautiful act of sacrificial love that we have ever known.

Psalm 27 starts with “Whom shall I fear” and it talks about going to a high place with the Lord, offering up a sacrifice of Joy and gazing upon the beauty of God.

It is said that once we start to see God as supremely beautiful, we will begin to do justice.

I come across a lot of “evil”, “ugly” people in my daily work. I could not do what I do unless I am able to see beauty within every human I encounter. It is there. I make a daily discipline of gazing upon the beauty of the Lord and in so doing I cannot help but see beauty in all, even the most unloveable.

I am absolutely convinced that it is only 100% pure unadulterated unmerited favour that will ever transform bad behaviour at it’s source. Punishment may work some of the time but it is not sustainable. We cannot answer the problem of violence with violent methods. We need to head the call to put up the sword!

As Lewis says, there are no ordinary humans. The sacredness of God has been imputed to all of humanity. Every being has worth bestowed on them by God. Regardless of record or character, every human has an indelible glory and significance because of who made them and who loves them (Psalm 145:9-17). Even those who turn away from him (Ez 33:11; John 3:16)

Pursuing peace by contending for justice

Peace is not the absence of conflict but the presence of justice. A counterfeit peace exists when people are pacified or so distracted or weary that all seems calm. True peace does not exist until there is justice, restoration and forgiveness. Peacemaking is not a passive thing. It is about interrupting injustice without mirroring injustice. Disarming evil without destroying the evil-doer.

It is about a revolution of love big enough to set free the oppressed and oppressors alike. We recognize in the faces of the oppressed our own faces, and in the hands of the oppressors, our own hands.

-Shane Claiborne

Peace like most beautiful things, starts small.

Peace, beauty and justice

Our father

Lord you are coming in glory to bring the fullness of peace, healing and justice.

Teach us to wait when you would have us wait.

Teach us to act when you would have us act.

Fill us up with so much expectation for your coming Kingdom that we cannot help but enact it now.

Amen

(From Common Prayer for Ordinary Radicals)

By: Sheena Jonker