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