ADR, Mediation and Restorative Justice Roundup

ADR, Mediation and Restorative Justice Roundup

It’s been a while since I blogged.

It was the best of times, it was the worst of times[i]

Best (Well…in a manner of speaking)

2021 has been a strange year. A bit like the classic Tale of Two Cities. It was the Best of Times, It was the Worst of Times.

In Fact, I think my last blog happened in 2020. 2020 was the ushering in of a strange new life for us all on many levels. But it also comprised a confluence of events (Disaster, 4th IR, Rule 61A and the RAF shift toward mediation, amongst others) that highlighted the utility, resilience and significance of ADR processes, specifically mediation. Wake up suddenly and you’re in…uh…thrust into a world of online work. In our case, online dispute resolution and mediation and online training in dispute resolution and mediation.[ii]

For the most part, I have felt this to be exceptionally beneficial to ADR and mediation. As a platform upon which, I have long thought, we can better advance ideals in better access to justice, I am seeing much of that capacity-building manifest before my very (screen locked) eyes.

Naturally I am alive to the obstacles faced by many with insufficient access to connectivity and devices. However, I am absolutely certain that these challenges are more easily and practicably overcome than the spatial injustice, economic challenges and public transport issues that complicate access to our courts.

The Hague Institute for Innovation in Law talks about online courts and that establishing online courts alone is insufficient for what may lie ahead. Our focus needs to shift significantly toward informal processes like mediation.

I had written previously about how Ken Cloke had so profoundly seemed to see up ahead in his book, ‘Politics, Dialogue and the Evolution of Democracy’ wherein he writes an actual Chapter on pandemic (back in actual 2018) and he talks about the need for the language of co-operation, collaboration and bridgebuilding as he predicts that the power-based problem -solving structures (police, military and courts) will start to crumble.[iii]

A lot of this has been good for those of us who have advocated for ADR, Mediation and Restorative justice and we have seen some magnificent gains for which we remain in awe and deeply grateful. But we do remain reverend in the face of the enormity of the work that lies ahead.

Worst (in a manner of speaking)

2021 has been a little weird. And scary. A little more weird and scary than 2020 was. Well…for me.

The July unrest in Durban had a particular impact on me. Leaving aside the enormous impact for others (for the moment) and naturally for all of us as a society. I have an ability to look up ahead with hope and doggedly refuse the idea that things may just fall apart completely. In July my ability near abandoned me. I have been deeply saddened by the events of the past number of months. I have previously written about how I feel that the state capture commission is an exceptionally expensive exercise in public square spectacle allowing us to point and say: ‘Look, the evil is over there. None of it is within me’ rather than to do the self-reflection that we all need to do. I have also written previously about my view on the constitutional anomalies inherent within the commission and that if one understands onus, burden of proof and elements of crime and how complicated this all is in prosecuting commercial crime, I think the commission has very low potential to manifest actual successful prosecutions and convictions.[iv] All this I believe to be complicated further by what I regard as constitutional anomalies and deficiencies in the process. Of course, I must be honest, I am hell-bent on a justice that restores rather than seeking to punish and so naturally I am less than joyous about a process that, to my mind, nurtures within us feelings of bloodlust and revenge as we see the ‘bombsquad’ unleased on whomever we have been made to believe are the ‘bad guys’.

You can check out previous blogs (referenced in the endnotes) that further expound my views on this and what I think a restorationist approach may be.

National Strategic Plan on Gender Based Violence and Femicide: Pillar 3

I have been appointed one of the ambassadors in what is a state-side and civil society partnership attempt to address the scourge of GBVF in our country. Having worked extensively to address sexual violence and domestic violence, initially in practice as an attorney and for the past decade and a half via victim centric restorative justice and ADR Methods, I am deeply grateful for this platform to advocate for something that I believe so whole-heartedly in.

Pillar 3 has to do with ADR and Restorative Justice. Through her tireless work, Mpho Mdingi of ADR Network SA Limpopo has lead the way to ensure that ADR Network SA makes its contribution in this project helping to organize and develop the 100 days of Divorce Mediation and 120 Days of Divorce Mediation Projects.

ADR Network SA has contributed various forms of training to the project for its various stakeholders including the DOJ, the UNODC and the LPC.

Two weeks ago I presented a webinar on Integrative Justice: A holistic Problem-Solving approach to Justice. You can access the text of it here. Integrative Justice: Presentation for National Strategic Plan on GBVF (Pillar 3) | ADR Network SA (adr-networksa.co.za)

I was also interviewed by the UNODC for their publication on women in conflict the law in view of my work in Restorative Justice.

This Thursday at 2pm I will be presenting, along with Gabi McKellar on Restorative Justice for Women and Children. Please attend if you can.

The details are as follows:

Herewith the link for the Pillar 3 webinar on 30 September 2021 14h00 – 15h30

Restorative justice for women and children

Moderators: Mpho Kgabi & Tania  Buitendag

Speakers: Sheena Jonker & Gabriella McKellar

Please forward the invite to all for distribution

CLICK HERE TO JOIN

Microsoft Teams meeting

Join on your computer or mobile app

Click here to join the meeting

Covid Injury in the Workplace and Vaccine Mandates: The Role of ADR

Please join us for this mediated discussion this Thursday at 6pm.

To RSVP and for zoom access details please email training@adr-networksa.co.za.

 

 

Mediation, Arbitration and Restorative Justice Training

Check out our programs and join us in the shift from the adversarial to the non-adversarial. From the Punitive to the Restorative.

Five Day Mediation Training: Training – Five Day Mediation Training | ADR Network SA (adr-networksa.co.za)

Wednesday Night School Series: Training – Wednesday School Series | ADR Network SA (adr-networksa.co.za)

Short Programs in various areas of ADR: Training – Online Short Training Programmes | ADR Network SA (adr-networksa.co.za)

One year Distance Learning programs in ADR and Restorative Justice: Training – Distance Learning Programs | ADR Network SA (adr-networksa.co.za)

Ongoing Professional Development for CPD: Training – Ongoing Professional Development for Mediators and Arbitrators | ADR Network SA (adr-networksa.co.za)

Panel Membership and Accreditation

Join our panel for annual accreditation and other benefits: Accreditation | ADR Network SA (adr-networksa.co.za) Accreditation | ADR Network SA (adr-networksa.co.za)

Provincial Structures

We have provincial structures in Limpopo, Gauteng and very soon in the Eastern Cape.

Limpopo, lead by Mpho Mdingi is opening new offices with the capacity for live local training, in person mediation and is putting a lot of energy behind stimulating court annexed mediation and Rule 41A. Get in touch with her at mpho@adr-networksa.co.za.

In peace,

Sheena Jonker

sheena@adr-networksa.co.za

[i] With thanks and apologies to Charles Dickens

[ii] For previous blogs: ALTERNATIVE DISPUTE RESOLUTION IN THE TIME OF COVID 19 | ADR Network SA (adr-networksa.co.za) and ADR, HUMAN RIGHTS AND COVID-19 | ADR Network SA (adr-networksa.co.za) and LOCKDOWN-RELATED DISPUTES AND THE ROLE OF ADR | ADR Network SA (adr-networksa.co.za)

[iii] Kenneth Cloke, ‘Politics, Dialogue and the Evolution of Democracy’

[iv] http://www.adr-networksa.co.za/restorative-justice-state-capture-and-corruption/ and

http://www.adr-networksa.co.za/dudu-myeni/

 

Integrative Justice: Presentation for National Strategic Plan on GBVF (Pillar 3)

INTEGRATIVE JUSTICE: Presentation for National Strategic Plan on GBVF (Pillar 3)

A FUNDAMENTAL SHIFT: TOUGH MINDS, TENDER HEARTS

In ancient times the lawyer was the healer in society. In the same way as the physician was the healer of the body, the lawyer was looked to in order to weave back together the unravelled threads of the tapestry of society. This was essentially the work of restoration of relationships that had been breached, injured or broken.

In modern times, the practice of law and the justice systems that it serves, has tended to become more and more rules based. And as with many professions and structures, often substance gives way to form. And so we may find a heavy bent on procedural justice or it’s pursuit and sometimes at the expense of substantive justice. Form over content, if you will.

The entire universe functions according to law. Our bodies function according to certain laws. There are laws that govern how healthy cells function. At a human physical level, we are at our healthiest when there is a head, heart balance. Or more comprehensively a head, heart, spirit, body balance. We are healthy when these aspects are integrated-they work as one. We become unhealthy when we live partially or in parts of ourselves. When we are all heart, we may become unhealthy.  If we live mainly up in our heads, we may become unhealthy.  If we are all spirit and we ignore our intellectual and physical well-being, we may become unhealthy. If we are all physicality and we ignore our intellectual, emotional and spiritual beings, we may become unhealthy or un-whole. All the different parts of ourselves are meant to work together in an integral way. We work best as whole systems when all the parts of ourselves work together as an integrated whole.

In the same ways, systems function best, serve society best when they work integratively. And so professions and administrative systems that serve society do well to adopt a whole systems approach.

So the integrative approach to law, to justice is that every problem, every legal dispute is best solved when regarded as and properly located and understood within the system that it is a part of or the system from which it manifests. An integrated, problem-solving approach to injustice is alive to the idea that we cannot solve problems and disputes in isolation or in a vacuum.

It also understands that what we do to one part of a system we do to the whole. Just as what we do to one part of our bodies, we do to the whole. What we do to one organ affects the whole. What we do to one cell, affects the whole.

WHAT IS THE SHIFT?

The shift is from two parties as opponents in a divorce dispute to two people who are part of a whole system, that must function, albeit, in a modified format, as a whole system beyond divorce particularly of there are children.

The shift is from the state in pursuit of an accused person to the state and accused as parts of a whole. The one part has allegedly injured the society that the state represents. How does each part come away with what it needs. If we deny that the injurer has needs and must be subject only to just desert then we participate in keeping cycles of violence firmly in place. The most dangerous humans are the ones with unmet needs. We know that.

The shift is from commercial partners locked in litigation in which one will emerge the winner and the other the loser to how do we repair what went wrong in ways that each will came away with what they need.

The high point of justice is that each party comes away with what they need and not just what we think they deserve.

In her book, Lawyers as Peacemakers, J Kim Wright quotes the following from Sheila Boyce:

‘Society made big advance(ment)s by requiring symbolic battle rather than actual battle.’  Boyce goes on that this symbolic battle is litigation in which each side presents their claims before a member of the elite who will then decide a winner and a loser. Law school assumes that this is the best environment for the practice of law where lawyers either do battle to resolve problems or they assist their clients in pursuit of means to avoid the battle. But there is always the underlying assumption that litigation may happen and so information and intentions are kept confidential and if the battle happens it is on the basis of win at all costs.

This does not foster a justice understood as rightly related individuals, making up rightly related families, making up rightly related communities and so on. What this does do is that it entrenches our ways of working on problems in parts, or partially, isolated a way from a the whole that each individual is a part of. The result is that collaboration, co-operation and problem-solving are not fostered and so we keep at trying to deal with the brokenness within our society symptomatically where the ‘cure’ is often convictions, incarcerations, suspensions, exclusions and the dichotomy between winners and losers.

Boyce says that in a similar way, business people incorporate themselves to protect themselves from liability. Now we have this huge, unwieldy and inhumane system in which those who have the most money, wield the most influence and power, profits are everything and millions go without what they need. She says that millions more spend their lives in prison and that lawyers and judges can be the linchpins in this system. The fundamental assumption is that we are separate and apart, potentially in conflict with each other, there is not enough to go around and that the strongest, wealthiest and smartest must be well-defended.

When someone commits a crime, we aim to convict, separate. Punish and deprive that person for a certain period of time. At some point, the thoughtful amongst us will take a look at the results and outcomes and start to question them-first the outcomes and then the assumptions that underpin them and keep them in place and we will say this is unsatisfactory.

Many lawyers come to feel jaded and dissatisfied with what they do with their time and energy, she says.

So we come to the central question.

IS HUMANITY A WHOLE, INTEGRATED SYSTEM WHERE EACH PERSON IS TO BE TREATED WITH LOVE AND COMPASSION OR IS EACH PERSON SEPARATE AND ENTITLED TO PURSUE HIS OR HER OWN EGOIC INTERESTS TO THE DETRIMENT OF AND WITHOUT REGARD TO THE EFFECT ON OTHERS?

Boyle says that this is more than about making lawyers happy, it is about changing the relationship between citizens and jurisprudence.

And so how do we change this relationship.

J Kim Wright Identifies a number of Vectors.

VECTORS

  1. Restorative Justice-addressing structural issues and shifting towards a justice that restores
  2. Therapeutic Jurisprudence-specialised problem-solving courts-Children’s Court, Family Court, Sexual Offences Court
  3. Mediation
  4. Collaborative Law
  5. Holistic Law

QUESTIONS FLOWING FROM THE CENTRAL QUESTION

Those who answered the central question in the affirmative have started to question the existential environment surrounding the legal and justice system:

What is we are not all separate and at odds with each other?

What if criminal justice is dehumanizing and degrading and keeps violence firmly in position in society?

Maybe litigated divorces are bad for parents and kids?

Maybe those who smoke weed should not be in prison?

Maybe sending the perpetrator to prison does not make them whole and does not stop the crime.

Maybe litigators are excited and energized by the battle but go home and wonder what they are contributing to.

By Sheena Jonker

sheena@adr-networksa.co.za

www.adr-networksa.co.za

RECOMMENDED READING AND SOURCES

J Kim Wright, Lawyers as Changemakers (S Jonker and Gabriela McKellar are contributors)

J Kim Wright, Lawyers as Peacemakers

ABOUT THE PRESENTER

SHEENA ST CLAIR JONKER

She obtained a BA in Legal Studies and Religious Studies from UKZN in 1992 and then obtained a postgraduate LLB in 1994 also from UKZN

She practiced law as an attorney for a decade as a general practitioner and also as a conveyancer

She taught law at University Level for 15 years

She had developed an interest in Alternative Dispute Resolution right at the beginning of practice

After the birth of her second child she stopped practising and took a year long break. After that she started to formally develop her passion for ADR and Restorative, non-adversarial systems and methods. She founded ADR Network SA which is a private Dispute Resolution Agency, training and development agency for mediators and arbitrators and also operates as a voluntary regulatory and compliance body in ADR

She is consulted widely both nationally and internationally for her expertise in restorative-justice informed dispute resolution processes across most areas of legal disputes. Past students of hers include local lawyers, judges, educators and international lawyers, judges and educators.

She also runs an NPO, The Access to Justice Association of SA which mobilizes dispute resolution resources for vulnerable persons and poor communities across Southern Africa.

She speaks and writes extensively about the promotion and development of non-adversarial and restorative methods in law reform projects and in organizational systems and structures.

Publications include:

Contribution to Lawyers as Changemakers, J Kim Wright (American Bar Association)

Various articles in Media for Justice

Various Articles in Thought Leader

Contributing Paper to Lawyers as Peacemakers Conference, IDRA, Unisa College of Law (2016)

Contributing Paper UNISA Labour Law Conference 2017

Accolades:

Shortlister: Hague Centre for Innovation in Law, 2016 (Access to Justice for Children)

Nominee: Pro Bono Awards, 2016

Other positions/Memberships/participations:

SAMLA Medico-Legal Mediator

Co-Chair-International Society for Therapeutic Jurisprudence (SA Chapter)

Member-International Integrative Law Movement

Email: sheena@adr-networksa.co.za

Dudu Myeni: State Capture, the Right to Remain Silent and the Privilege against Self Incrimination.

We need a justice that restores.

This week, the testimony of Dudu Myeni at the state capture commission has brought some important issues to the fore.

Some months ago I wrote about the possible role of restorative justice in the problem of state capture and corruption. This, in essence, because the complexity of running prosecutions and gaining convictions in commercial crimes cannot be adequately fathomed by society in general and so the very public state capture enquiry adds fuel and energy to society’s already desperate demand for justice which is often and to a large extent the misinterpreted desire for retribution and revenge. It is a blood lust type of energy and it is not good for us as a society which desperately needs to heal and achieve justice. Real justice is that every person has what they need. For the public to get what they need we need to have discussions around getting rid of the tender board that opens the way for unsavoury alliances between the public and private sector and expand public works. But that’s a discussion for a future blog.

Read my first blog on state capture and corruption here.

Thuli Madonsela has recently given credence to the potential for restorative justice for clerks and individuals possible lower down in the matrix that is state capture. I would argue that it is imperative for all of us that the entire process and every part of it is the work of restorative justice.

The state capture enquiry is complex and this week gave us some insight into (but not the full extent of) just how complex it may be.

Dudu Myeni has asserted her right to claim the privilege against self-incrimination. At the outset she expressed that she supports the enquiry and wishes to co-operate but feared that her right to remain silent may be compromised if she were to be charged criminally and would thus be asserting her privilege against self-incrimination.

Ms Hofmeyr for the commission clearly articulated the distinction between the right to remain silent and the privilege against self-incrimination. Ms Myeni’s legal team made some powerfully compelling submissions that Constitutionalist ought to reflect on with a great deal of care.

The aforegoing right to remain silent accrues to the accused in criminal proceedings and the latter (privilege against self-incrimination) can only be invoked in response to particular questions with the witness claiming privilege and putting forth reasons that justify that privilege. This means that Ms Myeni could not claim privilege on an entire theme of questioning such as SAA but needs to claim
her privilege in each instance where she may be exposed to incrimination. The economics of this painful process of questioning and claiming privilege on each question is mind boggling.

The result is that the media and public are watching Ms Myeni do what she is lawfully entitled to do and are widely and wildly interpreting her asserting her privilege as affirmation that she must be guilty.

This may present a constitutional anomaly, comparable, I think, to the reverse onus. She cannot invoke a right to remain silent because this is not a criminal forum and as such she cannot defend herself in the way that she would be able to in a criminal court and enjoy the onus and high burden of proof being squarely on her accusers. Instead, she must appear at the commission, on television, asserting her privilege against self-incrimination in every instance, which is perfectly good in law, and be exposed to vast sectors of society and the media pre-judging her as guilty and moreover ridiculing her in ways that may violate her dignity and harm her reputation for life whether she is ultimately found guilty or not and whether in fact she is guilty or not.

This may well open the way for her legal team to argue in a criminal court, if she is charged, that her matter is incapable of a fair trial.

All the while, South Africans are watching, getting the usual angry rise and becoming more brazen in often racially charged ridicule, comment and conjecture whilst billions drain away to a process that simply does not have the capacity to give us what we need. Healing and a just society.

That is a society where everyone has what they need.

By Sheena St Clair Jonker
ADR NETWORK SA
sheena@adr-networksa.co.za

How dare we condemn some of the cruelty and not all of it?

The horse-racing protests at Fairview and how we think about protest.

I recently wrote about the Clicks protests and how the EFF was disturbing the ‘peace’ and revealing and confronting the folly of the idea of and insistence on ‘law and order’ in a deeply unjust society.

I also wrote about the potential for restorative justice to have a hand in bringing about racial justice. This would require bringing together the warrior energies of activists and protesters and the healer energies of restorative justice advocates.

As a matter of perspective, following my Clicks article referred to above, I was confronted (most disrespectfully) by a handful of white men. Two in particular accused me of ‘aligning’ with what they called the ‘most racist organisation in the world’. Fania Davis writes that the common view that a black individual anti-white sentiment can be just as racist as a white individual expressing anti-black animus is mistaken. Because it is backed up by nearly four hundred years of structural and institutional power, anti-black racism is more potent and virulent by several orders of magnitude: there is no comparison.

One of these men adjudicated a bold (and vacuous) statement that there was nothing racist about the Clicks advertisement pointing to the ‘all black marketing team’. Whilst it is verifiable that the marketing director was black, I can find no data on who ideated the advert and/or how and by whom it was approved it for publishing. He also lamented that Clicks employs around 80% black individuals, 65% of whom are females. He stated. If this is the case, it should give us an idea of just how insidious, hardened and emboldened systemic and institutional racism in South Africa really is. A system that still provides cover for ‘white hair is normal’ and ‘black hair is dry and damaged’ should insult us all. And this is a company that employs so many black females. In the same way that most of us partake in and prop up patriarchy, even though it hurts and injures women, most of us partake in and prop up anti-black racism even though it hurts and injures black people. That is because it is systemic and institutional apart from being individual. Racism is hard-wired into almost every part of South African Society and it is a system that has been four centuries in the making. Do we want to heal? Because if we do we ought to do better. And if we do, we need to actively dismantle every part of our systems and institutions that inadvertently partake in and advance racism. The same goes for patriarchy and all other forms of oppression which, by the way, are all inter-connected.

This week’s treat for racists, though, was the racehorse protests at Fairview. The media provided a rise reporting initially that a horse had been hacked to death and others had been maimed in protests. This, the media reported, amidst protests this week originated in a pay dispute after a groom had stabbed a horse earlier this year. As further information became available it started to emerge that there were reports of a groom who had accidentally cut a horse whilst cutting its hair when it reared up. Reports are that the employer wanted to dismiss the groom and deduct the vets’ fees from his pay (an estimated between R 13 000 and R 15 000 depending on which report one reads).

The other grooms has requested that he not be dismissed and had committed to pay the bill from their collective wages. Their employer refused this offer and the grooms stayed away and were then dismissed in a way that left them unable to access their UIF for several months.

This lead to protests in which it has now been reported that race-horses were let out of their stables and some of the horses were injured (one lost its life) in the mayhem of horses and protesters running in all directions. The way in which this story was reported is an example of reporting the presenting injury or the symptom whilst not properly ventilating the previous or originating injury or injuries or the cause which in this cause may have been a violation or violations of labour law by the employer.

Just as in the Clicks protests, any particularly disruptive or destructive aspects of protests were well ventilated. With a reported 37 out of 400 stores suffering some sort of damage although there is little to no data on context or extent ie did protests become violent due to outside agitation and what was the extent of any damage? In some quarters the protests were characterised as largely violent and destructive rather than largely peaceful (over 90% had been peaceful if one does the maths on available figures) and having achieved a restorative outcome – acknowledgment of harm, apology, withdrawal of the product, expansion of local products and various reparative measures and of course, an end to the protests.

During the horse-racing protests, protestors were characterised as brutal and cruel which lead to the usual rise from readers and social media commentators condemning the protests and the protestors and writing them off as cruel, vicious and barbaric. Not surprisingly, many harbouring individual racist sentiment, vented their racist ideas out loud and with abandon. Readers were given little room for or encouragement to reflect on:

  1. What lead to the protests? If it was labour action that was unfair and/or unlawful and had left around 120 grooms in a desperate situation for months (remembering that each groom could easily be responsible for between 4 and 8 family members meaning that this action may have left a large portion of a community in a desperate position, then who is the actual guilty party or who are the guilty parties. What is worse, violence or incitement to violence? Where does incitement to violence start? With regard to the Clicks advert do we call incitement to violence on the EFF or do we call incitement to violence on Clicks? In the Fairview case, could it be possible that keeping a large number of people in a desperate and humiliated position was inevitably going to lead to protest and that protest carried the potential for injury and further harm? In a system bent on ultimate responsibility for wrongdoers, I think, all too often we hone in on the presenting injury and hardly ever or insufficiently on the originating harm or injury.
  2. Horse-racing where horses are kept as assets for the entertainment of the wealthy and in perpetually fearful (skittish) states to the extent (at the least) that they have to be blinkered and whipped to perform in circumstances that they are meant to perform, many fall in the process and are put to death then and there. Race-horse owners are insured for this as these beings are income-earning assets for them. Indications are that they were victims of exploitation before these protests (if we consider their position as assets for human entertainment as well as horse-racing as a part of a gambling industry which inordinately affects those vulnerable to addiction and can and does destroy lives), and so were their grooms who, as this case may point to, are vulnerable to possibly unfair and/or unlawful labour practices that leave them desperate enough to protest in this way.
  3. Even if the reports of horses being hacked and assaulted were true, and indications that they were not, what legitimate voice would the vast majority of us have to condemn the cruelty when our bacon or our steak, who was once a sensitive, intuitive being that felt pain in the same way as those horses do, and as we do, was stabbed in the throat, electrocuted, burnt with fire while still conscious to remove its fur. This is after being raped for milk, being kept alive in squalor and confinement, on antibiotics and enduring a terrifying trip on the back of a truck to a slaughterhouse. And the vast majority of us do this to innocent animals completely and completely unprovoked all the time.

How dare we judge those living in desperation with their backs against the wall. How dare we condemn some cruelty and not all of it.

By Sheena St Clair Jonker
ADR NETWORK SA
sheena@adr-networksa.co.za

Balancing the warrior and the healer

Earlier this week I wrote about the EFF call to action and insuring protests in the wake of the racist hair advert published by Clicks and its partners. In order to get to true peace where justice is present, it may be necessary to disturb the peace or the folly of “law and order” in an unjust society.

During its first 40 years, as a challenge to the adversarial system, restorative justice has largely failed to address race and racial justice, according to Fania E Davis. (We must not forget that restorative justice has existed for centuries as the way of addressing harm in indigenous society and many faith traditions.)

This failure is surprising, she says, on the basis that people of colour overwhelmingly bear the brunt of the horrific inequities of the (western) criminal justice system, past and present. In the same way that restorative justice proponents have failed to develop a racial justice and a social justice, activists in racial and social justice have not widely been adherents to or proponents of restorative justice.

Davies calls for a convergence of the two urging racial justice advocates to invite more healing energies into their lives and restorative justice advocates to invite more warrior energies into theirs.

She clarifies her use of the warrior and healer archetypes as follows: the “warrior“ is not used in its oppositional and militaristic sense but in its spiritual valance connoting the integration of power and compassion. In an example, she thinks of the youth activists at standing Rock who led the historic resistance to the Dakota access pipeline installation in 2016 and who engaged in ceremony as a form of social action proclaiming themselves water and earth protectors, and not simply protestors. She thinks too of the fierce African Massai warriors who first and foremost protect children.

In the same way ’healer’ is not used to connote when one works to heal the human body but more broadly to mean when we aspire to heal the social body, or transform social harm.

Because South Africa was born in violent economic dispossession exclusion and exploitation over centuries and because we have neither fully acknowledged or reckoned with these traumas much less worked to heal them they perpetually manifest themselves.

Those of us who have committed our lives and our work towards a just society will have a chance to succeed only in devotion to both individual and collective healing.

Restorative justice in its various indigenous and sacred expressions is at its core, the work of deeply entering into and  maintaining ‘Right relationship’. South Africa is not a scene of rightly related citizens. Rather it is a scene of a small majority having way more of what they need and the large majority living with your backs against the wall. And this is squarely a continuation of centuries old dispossession, exclusion and exploitation.

So, as I said, earlier this week I wrote about the EFF protest action in the wake of the Clicks advert. What South Africans primarily saw was warrior energy in almost full expression. We have a tendency to want to suppress warrior energy especially when it is collective and we look to the ‘Law and order’ state to do this. However, as I wrote, the EFF is exposing the folly of “law and order“ in a deeply unjust society.

What we witnessed yesterday, was the access of something of a healing energy when, out of talks with both Clicks and Unilever, the EFF resolved to call off its protest on the basis of Restorative outcomes comprising acknowledgement of harm, apology and certain reparative measures.

This has been a wonderful demonstration of how the warrior and the healer can come together to restore a society to justice. The warrior confronts, disrupts and disturbs the ‘peace’ which often acts as cover for all kinds of else, most notably racism. And the healer engages and looks for and develops solutions.

I am aware of incidents where the protest was reported to have turned destructive and violent. I am aware of certain individuals and organisations accusing the EFF of inciting violence.

‘The Palestinian poet Mourid Barghouti writes that if you want to dispossess a people, the simplest way to do it is to tell their story and to start with, “secondly.” Start the story with the arrows of the Native Americans, and not with the arrival of the British, and you have an entirely different story. Start the story with the failure of the African state, and not with the colonial creation of the African state, and you have an entirely different story.’ (Adichi)

We must take care not to start with the secondly here. We must start with the underlying act of racism perpetrated by Clicks and it’s partners.

In the words of Vicky Osterweil, none of us will know true freedom until we properly dismantle the existing institutions and prevailing effects of settler colonialism and white supremacy in this world.

To get here, we need the work of both warriors and healers to succeed in a justice that restores.

By Sheena St Clair Jonker
ADR NETWORK SA
sheena@adr-networksa.co.za


Sources and recommended reading:

‘The little book of race and restorative justice’, FE Davis

‘The danger of the single story’, Adichi (Ted.com)

‘Disturbing the ‘peace’. The EFF is leading the way.’  Sheena Jonker (http://www.adr-networksa.co.za/blog/)

Disturbing the ‘peace’. The EFF is leading the way.

We are in a global space of struggle that threatens the core of capitalism and its various racialised manifestations not least of which is the boot on the neck of the black majority in South Africa where labour potential is sold to the quintessential lowest bidder in a completely normalised way and human beings are placated to their lot on the basis, literally, that they won’t starve.

This, whilst enormous wealth, built on the back of our natural resources and the backs of our people, drains away to multinationals as we continue to pander to the gods of foreign investment and our people remain in desperate situations.

The politics of the EFF is a direct and loud challenge to capitalist and collaterally racist status quo. Disruption is key to shifting entrenched patterns of injustice. Those who have the courage to disturb the peace are often the real peacemakers of this world.

We often confuse peacekeeping and peacemaking and this can be lethal.

Peacekeeping may result in a veneer of peace. But this is often a false peace brought about by the crushing and often violent methods of police military and/or criminal justice.

The EFF furnished a list of demands after Clicks published an online advert that portrayed black hair as dry and damaged and white hair as normal.

Following this it demanded that Clicks close for five days. Actually, this was a measured approach-a demand for access to information and then a notice to close failing which the EFF would ensure store closure.

The Clicks executive failed to see this as an opportunity to make good and redeem themselves. It would not have amounted to the demise of Clicks. It would’ve caused discomfort and it would’ve hurt their profits, as it should have, and they would’ve had to explain to their shareholders but they could’ve got through it and paid the price of their actions. An appropriate price. A measured price in the circumstances.They could have provided access to information in an appropriate format and could have closed for five days committing to pay their workers whilst losing five days of income. Just five days.

Unfortunately they opted for an arrogant approach and the path of most resistance leaving its (largely poor and black) employees on the front lines of a (very necessary) struggle for racial justice.

We should all be offended. By Clicks. By business that continues to think that they can infringe African dignity in Africa. We should all be saying in unison racists will not do business in Africa. We should all insist on disturbing the ‘peace’ that keeps a deeply unequal society in place.

Law and order should never be a proxy for justice. When will we learn that if we want peace we need to be serious about justice?

And the extent to which African hair is still inordinately policed in Africa-in our schools, and in workplaces, and in our minds is indicative that the pandemic of oppression, racism being an ongoing manifestation, is alive and well and it will end us all.

Movements like Black Lives Matter and aligned formations are opening a healing portal for us all but we need to drop being satisfied with peacekeeping and its associated violent imposition of calm and we really need to get serious about peacemaking. That is how we usher in justice.

As far as I could tell, the EFF was not calling for damage or destruction. There was no call to destroy Clicks. Essentially it called for reparative and restorative measures aimed at interrupting action that is a continuation of an underlying theme of a deeply unjust society. For the most part, this was peaceful, though disruptive protest. And protest must bring about disruption. Where there was any form of destruction, we should surely attribute that to the inevitability of the arrogant and obstinate course chosen by Clicks in the circumstances.

In this way and in many other ways the EFF is leading the way in disturbing the “peace “. And in displacing the false peace that helps to maintain the status quo.

It is exposing the folly of “law and order“ in a society that is deeply unjust.

By Sheena St Clair Jonker
ADR NETWORK SA
sheena@adr-networksa.co.za