A final reminder about our Fourways, Johannesburg training next week. Please urgently get in touch if you still wish to attend. Past trainees and Distance Learning trainees can attend at cost of conferencing.
We live with soft and violent. We need tough and healing
I often say that when we look to raise up restorative justice peacemakers and train mediators we are looking for those with tough minds and soft hearts. Hard heartedness and soft-mindedness facilitates ongoing ills in society.
Let me unpack this further. The Criminal Justice system, which just sent Oscar to prison is a soft, violent system.
That sounds like it makes no sense. No?
Allow me to explain. It’s a soft system in that the artificial system of evidence in court allows for muting of narratives and exclusion of evidence at the behest of brilliant lawyers who know the rules well and how to play the system the best. So it allows for what I call truth massacre. The truth is often the greatest casualty. It is not a process that is tough enough on getting at the truth. But ironically, it is precisely because it is a violent process that makes it soft on getting to truth. This is because it is encapsulated in a high-level fear environment. The outworkings of the criminal justice system our so damaging, that the entire system is set up to motivate and perpetuate a culture of denialism rather than advance a culture of courageous truth-telling. Oscar like everybody else knows that it is a system that wants the truth but it wants to destroy the offender whether he tells the truth or not.
So the very first images of Oscar in the dock, even when the presumption of innocence applied, was of a human being with his most horrific actions exposed for all the world to see, and now in his most vulnerable moment, completely exposed with dozens of camera flashes in his face. The last images of him are being paraded through the street put in a caged van with crowds and cameras in his face again. His act of killing Reeva was born in insanity. The barbarism of the criminal justice system that allows for this public display of bloodhound-like pursuit of a human is also born in barbarism. Unless we recognize that we cannot answer barbaric acts with different forms and different levels of barbaric acts, we will never end up dismantling the violent culture that we are all a product of at varying levels.
If you look at the entire process, the dignity of Reeva was not kept in tact. Images of her displayed in her most brutalized moment for all the world to see, precisely to stir up the anger of the public against the person who took her life. This doesn’t protect her. This doesn’t protect thousands of other woman and children potentially in this position. It just continues to advance violent culture. Keeping the fire of the perpetual spiral alive and well.
We need processes that are tougher at getting at the truth. And we need outcomes that facilitate healing and restoration of offenders.
I personally don’t believe we got to the whole truth in the Oscar trial. But I know that for as long as the system continues the way it is, the Oscars of this world will be too petrified to tell the truth and will use brilliant lawyers, as they have every right to, to advance a version that could possibly fit with often compromised forensics
Restorative Justice is not soft. It’s tough. It’s hard work. It’s hard on the truth and it’s hard on the issues. But it is a process that facilitates truth, accountability and ultimately behavioural change. The fact that amongst optional outcomes may be restoration and healing for victims and offenders, makes it’s application way more supportive of getting to the truth, of offenders and societies learning from the process and of ultimately dismantling the violence.
We cannot think we will ever dismantle violent acts apart from all working together to dismantle violent culture and our own violent thinking.
We need to ask ourselves what we want. Do we want those who offend, those who choose badly, to suffer? Or do we want the violence to stop. The former is easy work if we continue to apply violent, retributive, punitive systems. But it will never achieve the latter whilst clinging on to the need for the former.
Sheena St. Clair Jonker
ADR Network SA and The Access to Justice Association of Southern Africa
firstname.lastname@example.org or email@example.com
Tomorrow Oscar is sentenced. Friday we heard argument in mitigation of sentence and argument in aggravation of sentence. I have views on both.
In the first place the presence of a self-confessed contract killer in court last week, who previously made a deal with Gerrie Nel which bought him immunity from prosecution and the very consequences for killing another human being that Gerrie Nel speaks of, derogates Gerrie Nel’s credibility when he exhorts the judge and her assessors not to allow Oscar get away with the gravity of what he has done. It’s a pretty surreal context which we must process and ask ourselves some tough questions. I leave that to you.
Barry Roux on the other hand raises all the mitigating factors that would support application of restorative justice, but his fleeting and lightweight references to Ubuntu and Restorative Justice (although they may be elaborated on well in his heads of argument) do not demonstrate a profound understanding of or depth of insight into these concepts. I mention this because this was an ideal opportunity to sensitize society to restorative justice and I think it was lost.
I am not well-versed in the concept of Ubuntu philosophy except to the extent that it is supportive of restorative justice.
I am a strong advocate of restorative justice and it is central to what I do. And because of that I feel a responsibility to clear up a few things that have emerged in the societal debate around Oscar’s sentencing.
Number 1 is that restorative justice does not, by implication, only find application in petty crimes. On the contrary, Restorative Justice, and its application saw scores of individuals gaining amnesty for apartheid crimes. Heinous crimes. This process was central to the avoidance of civil war at the time. Why do we forget this so quickly. Allow me to take this opportunity to point out though that Restorative Justice is about Restoration and we are still in that process. This means that if we do not complete the process of restoring the land to those dispossessed of it, the Truth and Reconciliation Commission is not only incomplete, but the amnesty granted for heinous crimes against humans must then be called into question. Further more, if we do not commit to economic transformation generally, the restorative process remains incomplete.
Number 2 is that my view is that the overwhelming desire of society to see Oscar go to prison is born out of societal bloodlust. Oscar is a product of violent society. I’m not talking about South Africa, I’m talking about humanity. Our bloodlust to see those who harm, harmed is a product of violent society. Our thirst for retributive justice over restorative justice is part of what keeps the spiral of violence alive.
Number 3 is that my view is that prison should be an absolute last resort reserved for those who absolutely cannot function in society and would be a danger to society. We kid ourselves when we think that retributive justice corrects, restores or rehabilitates. It is simply not so. We kid ourselves when we think that sending Oscar to prison will save any number of women and children’s lives. It’s not so. The spiralling cycle of perpetual violence born out of the notion that we must injure those who injure simply worsens the problem of violence.
If Oscar goes to prison, society gets what it wants for like five minutes and then what? What is achieved? All his energy is applied to getting his sentence displaced as we see in other matters.
There are other methods of bringing wrongdoers to account. Oscar should pay back his debt to society: but with his talent, with his resources, with the platform he has. Oscar needs to play a part in healing society from this kind of thing. He needs to have a chance to step back and focus on what he has done and how best he can make that up to society. I still don’t believe we have heard exactly what happened that night. I still believe the truth was massacred in court both ways. I still believe a restorative approach from the outset would have minimized fear and maximized potential for truth, accountability and ultimately healing and restoration. In prison, the chance of him reflecting on making good, making up to society are slim. In prison he will be pre-occupied with getting out.
The desire for revenge is a heavy burden to bear. And the collective desire for revenge can literally destroy us all. Redemptive violence has never ever proved itself effective in dismantling violence. Punishment and retribution is quick fix. It’s the easy answer. We have confused what justice really is with notions of punishment and making wrongdoers “pay”. Doing justice is about restoring the template. Making things right. Giving back dignity. Restoration and healing is much, much harder work. It requires wisdom, resilience and courage. It requires focus and commitment. It’s way easier to resign ourselves to the violent imagery and violent culture we are literally immersed in. We are immersed in violent imagery in entertainment and we have become really ok with it. The media pummels us with the violent of the world all the time. So obviously it’s our natural impulse to say those who injure, must be injured in return. Retributive yearnings go hand in hand with perpetual violence. It’s not good for any of us. We don’t know who we are anymore. And our survival, our very humanity depends on us all asking ourselves some tough questions.
The violence must stop. And it will never stop if we keep applying violent answers to the problem of violence. It just won’t.
Peace, by the presence of justice
Sheena St. Clair Jonker
ADR Network SA and the Access to Justice Association of Southern Africa
firstname.lastname@example.org or email@example.com
Just a reminder about the following training dates:
1. One day Court Annexed Mediation:
Durban Thursday 23 October
Cape Town Thursday 30 October
Jozi Thursday 6 November
Cost is R 200 for existing and past trainees, no cost for registered panellists and R 1000 for all others
To book send an email and proof of payment to firstname.lastname@example.org
ADR Network SA
Br 223726 Hillcrest
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2. Five Day Programs
27-31 October 2014 Cape Town
3-7 November 2014 Johannesburg
Email email@example.com for registration forms
3. Distance Learning
Registration is open
Request information from firstname.lastname@example.org
As always, peace
Our Program incorporates specific Training on Court Annexed Mediation on the Thursday of Each Program. Past Trainees and panellists are entitled to attend, the former just at cost and the latter at no cost. The content on Court Annexed Mediation is relatively organic in order to keep abreast with unfolding developments on the pilot
Scheduled Upcoming 5 day Training dates are
Durban: 20-24 October
Durban Court annexed mediation on Thursday 23 October
Cape Town: 27-31 October
Cape Town Court Annexed Mediation on 30 October
Joburg: 3-7 November
Joburg Court Annexed Mediation on 6 November
*subject to minimum registrations
Email : email@example.com
From time to time we offer partial subsidies on our distance learning programs (25%, 50% and 75%). Please enquire on availability.
- Current Matters
- Private Dispute Resolution is ongoing in Divorce, Commercial matters, labour matters and other matters
- I am currently in Cape Town working on matters relating to Industry Role out in the Taxi Industry. This is tough work but allows for highlighting Alternative Dispute Resolution and Restorative Justice at the highest levels. I am working hard to highlight the necessary centrality of ADR processes in Administrative Law and healthy functioning Constitutional Democracy
- Eviction matters. Also mainly in the Western Cape where we have been consulted. We are mainly entering these matters is Amicus Curiae where we highlight Constitutional Issues and advocate for diversion to ADR Dialogue. ADR Dialogue makes most sense in respect of the need for consultation on alternatives and the rights of vulnerable persons
- S v Sangweni ADR Dialogue continues in November
- Special task group on access to justice for vulnerable persons. I will be making submissions in November on access to justice as well as highlighting the utility of ADR processes in gaining access to justice for vulnerable citizens
As always, Peace.