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
I returned from Cape Town last night and this morning as I opened 3 brand new files for evictions of communities, I wept.
Look. The weather in Cape Town was enough to make any grown Durbanite cry, but right now, I write of not natural phenomena, but imposed human tragedy and suffering.
I was in Cape Town, primarily to advocate for members of the Taxi Industry who are patently being sidelined and subject to arbitrary non-renewal and non-granting of permits which is accompanied by, expensive, and sometimes violent, law enforcement.
While I was there, I was consulted by yet another community facing eviction. Correction, this is the first one facing eviction. The other two were evicted in some kind of act first and explain later massacre of the law and complete derogation of the essential standard of what is humane.
This community faces eviction. And they were referred to me by Ses’khona on the day before the action for eviction was to be heard in court.
I met with the community leaders who handed me a heart breaking statement they had written on the mandate of the community. I publish it here, with their consent.
“New Castle residents we came from inside Monwabisi Park that know as Ndlovini, we were living as back yarders and house keepers. Living like that was never been pleasant, the land lords do whatever they like because they know that we were depending on them. It hurt deep inside when somebody is telling you that should’ve been living on the streets if he/she didn’t accepted you in his/her space.
Being a backyarder had never been easy. You must always keep in your mind that anytime you can be kicked out as that happened to us, because we were not in our own space or plot. What during the process of development we were given the notice by our land lords to move our shack out so they can put their relatives and children on the spaces so they can get development. It is hard to refuse when someone is telling you that, while you know that you living in his/her space. Rent and electricity are so expensive, some of us are not working, and some of us does not get enough salary/wages to go rent some else when we got kicked out. When got kicked out we didn’t know where to go, we then decided to use piece of land to build us some houses.
As there is a speech or saying here in South Africa, South Africa belong to all who live in it, our feeling on that speech is like we are foreigners in our country. We then decided to come to this space at back of Ndlovini which we called it New Castle and use it as our home. A home is where it is safe, we took that as our responsibility to keep New Castle safe and secured.
In New Castle we did not mean to interrupt the metro of City of Cape Town on the progress of working. As the slogan of our metro says, this City works for you, we sincerely want it to work for us on this really hard situation. We have families and children to take care, we don’t afford to be on the streets.
As New Castle residents we are sincerely needed a place to live and that’s why we ended up here.”
So yesterday what I did was attempt to call the City’s attorneys to let them know we had been instructed and needed time to consult with the community and instruct a legal team to represent them. I found that even with a case number and file reference number, the firm dealing with the matter could not direct me to the attorney handling the matter. I have over 10 years experience formerly practising as an attorney and conveyancer, over 18 years experience in teaching law and ADR and in the practice of alternative dispute resolution and restorative justice. And I could not secure these details. What chance does a Xhosa speaking community of urban shack-dwellers facing eviction by the City have?
As I was heading down to court the community leader called me
“Mamma, the community is waiting at court for you
I’m on my way
Mamma can the community sing?
Yes, you can sing. But remain peaceful. We must be safe.
As I arrived at the court, I heard a group approaching, singing.
They gathered in from of the court and I thought it was the New Castle Community. But I stood on the court steps waiting for the community leaders. The group were singing and dancing, but they were peaceful.
At some point I was called by our clients. They had gone to the wrong court and I directed them to the High Court. I realised the community before me were not our clients. I learned this was a community who had been evicted and their matter was also in court.
At some point a police officer approached me:
“This group must stop singing
Why? They are peaceful, I said
Do they have permits to gather?
They have been evicted and summoned to court. They have every right to be here, I said
The police officer turned menacing and took out his phone threatening that if they do not stop singing he would “call who I have to call”
He a wrapped up his threats with “They will disturb the office workers and we can’t allow that”
Seeing this engagement the group started to Toyi Toyi. So just to help diffuse the situation I approached one of the members upfront to chat to them. The community became suspicious and started to chant “shoot, shoot, shoot.” In Xhosa. I with the assistance of someone with me was able to convey that we were allies of their plight and not against them and all remained calm.
Time was getting short so I headed up to court to see if I could find the City’s lawyers. The registrar was helpful and said as soon as they arrived, he would introduce them to me. Looking around the court and seeing it filling up with Advocates rapidly, I said to the registrar, the community is gathering outside and there is another community. I think things may be tense with police and I may like to invite the community in just to help mitigate against any injury or harm.
“We don’t care what happens out there, they can kill each other for all I care. We don’t have space in here”
So I said, Sir, I think we have a responsibility to guard against injury and loss of life.
The Registrar softened and said “Madam, you are right, and they have every right to be here. Inside. Please invite them in”
When the City Legal Team got there, they were immediately directed to me. They were gracious and approachable and agreed on a two week postponement for Access to Justice to understand the case against the community and instruct an appropriate legal team.
Outside, in the rain, I addressed the community, with the help of one of our Taxi Operator clients who helped me interpret and who helped me get to Court and Assisted me in navigating all the territory, literally and figuratively. I explained to the community the purpose of the adjournment and how we would gather information and advocate for engagement with the City in terms of Section 26 of the Constitution and the Grootboom case which makes it unlawful for Administration to evict without proper consultation on alternative living arrangments. I also gave them comfort, confirmed by the City’s legal team, that no action to evict would be undertaken immediately.
As we were wrapping up, a woman approached me and asked to meet with me. She happens to be the acting head of the SA Human Rights Commission of the Province. We met later and discussed the disturbing trend of local government and the state literally negating the needs of the poor and actually creating further homelessness. We spoke of the plight of the poor as the sleeping giant about to surge up and agreed that we would do all we could to work in solidarity with each other and others who recognize this as untenable for every citizen of the country. And we agreed that we would respond to the plight of the poor in this with whatever measures we can to protect them against further injury, further homelessness and further, extra-aneously imposed poverty. We agreed that it is in the interests of every single citizen of this land that we protect the poor.
We will not accept a status quo where office workers are protected from hearing singing in the streets, but the poor are not safe in their own homes. And the enemy of the poor, happens to be the very ones with a responsibility to protect them
Sheena St. Clair Jonker
ADR Network SA and Access to Justice
FACTS ARE THE ENEMY OF TRUTH
There is much anger and disappointment at the verdict in the Oscar Pistorius Trial. Personally, I am amazed at the amazement especially in legal circles.
During the state case, I was working from home after surgery, and I watched the entire State case. (I also watched much of the defence case, but not all of it) At the end of the state case, I felt certain that it had not done enough to prove intention beyond a reasonable doubt.
There is much talk in legal circles about dolus eventualis as well as putative private defence. It looks to almost everyone on earth (including myself) that with four bullets in the door of a tiny cubicle that Oscar intended to kill whomever was behind the door. Dolus Eventualis is a form of indirect or reckless intention, where one foresees certain consequences, and acts in a way that reconciles oneself to those consequences. It seems obvious to anyone that that is exactly what Oscar did.
It also seems obvious that if a he raises the defence of putatative self-defence, then he must have intended to kill the unknown intruder, or at least reconciled himself with this consequence, albeit in defence of his own life (and Reeva’s, on his version)
The problem is, so much confusion was created by Oscar himself. As the judge said his testimony seemed to contradict his own defence of putative self-defence. His testimony is full of statements like “I didn’t have time to think”. Furthermore, it doesn’t appear to be his version that he intended to kill, or reconciled himself with killing whomever was behind the door. No matter how much it may be the truth that he indeed intended to kill, the confusion created by Oscar himself compounded by the inadequacies of state evidence and the multitude of contradictions of state witnesses, it at the very least, raises a reasonable doubt as to what was in his head at the time. There was simply not enough done by the state to gainsay what he says was in his head at the time. And if what he said he was thinking/or not thinking at the time could be reasonably possibly true, then the Judge acted within the law to declare him not guilty on pre-meditated murder or murder.
I don’t for one minute doubt, that another court could find differently. With all the legal opinion weighing in on the argument in the press, there are many ways to argue this.
My view remains that the State did not discharge the heavy burden of beyond a reasonable doubt.
In the adversarial system , and more specifically the accusatorial system which is the nature of our criminal justice system, facts can literally be the enemy of truth.
That seems crazy. But it’s true. The system is based in competition. There are rules of engagement which must be adhered to. These are called the law of evidence. Ours is an artificial system of evidence rather than a free system. This means that there are several rules guiding what evidence is admissible. Therefore each side can raise objections to the evidence of the other side on various bases. This system was originally created for jury systems, to protect the minds of lay persons. Judicial systems were always meant to have free systems of evidence where testimony is freely lead, freely told and the judicial officer, schooled in the law, must apply his or her mind to the entire body of evidence and make an ultimate call on what does and does not add up.
My view is that our application of an artificial system of evidence to a judicial system is erroneous and supports the commonplace injustices that emerge from court process. But that’s a big subject and for another time.
The artificial system of evidence is susceptible to tactical games playing, and muting and even shutting down of authentic narratives. It is also susceptible to delays borne out of trials-within-trials to decide technical and procedural points like admissibility of evidence, compellability of witnesses and the like.
What happened in Oscar’s trial is how the system is designed to operate: the accused is presumed innocent until proven guilty, does not have to prove his innocence, but can test the state case to see if it is strong enough to prove guilt beyond a reasonable doubt, all the while simply advancing a version that may possibly fit with often compromised forensics. Compromised forensics in themselves are often enough to raise the requisite reasonable doubt, which is the only burden the defence has, to raise a reasonable doubt.
So in this system if you can pay for brilliant lawyers, this is often how things look. And within our legal framework, this is not unjust. But if one applies philosophies of natural justice, it is unjust. And it is not dissimilar all over the world and in other systems. The entire system operates on what facts can actually be established (proved) in court. And this often rails against the truth.
South Africans beat themselves up wanting to see “justice” in court. The truth is, a competitive adversarial system is just not the best platform for truth and justice. The truth may emerge, it may not. Sometimes it does. Sometimes it doesn’t. And ultimately it is dependent on which side has the best lawyers and that is dependent on who can afford the best lawyers.
Broadcasting trials of this nature to the public is problematic in the sense that the public does not understand the law. It takes a very long time to understand the law. It takes an average of 7 years of study and internship just to get into practice. It takes even longer than that to actually grasp the law. So certain aspects of broadcasting this stuff, are in my view, unhelpful. South Africans are unnecessarily angered and given a platform to lambast the system and its stewards.
But it’s not all bad, it gives individuals like myself that advocate for Alternative Dispute Resolution and Restorative Justice a platform to highlight the deficiencies of this system. The system is a poor attempt at cure. It is a form of redemptive violence. At best it is a cheap band aid. At worst it is an assault rifle with the capacity to further injure the already injured. And that injures all of us. We must understand that.
On Friday, an attorney for The Access to Justice Association of Southern Africa attend a regional court to represent twelve accused in a bail application. They have been in jail for two weeks already. They were arrested in a scuffle with police at Marikana, Cape Town which ensued when police came to evict them from their shacks which were subsequently destroyed with everything in them. They had the audacity to demand sight of a court order which could not be produced. In the flare up in defence of their homes, they were arrested. Those that had jobs, have now lost them. On Friday the state opposed bail on the basis that they had allegedly attempted to escape. They deny this and are convinced video footage will exonerate them. The problem is the court would not order that video footage be viewed then. They will remain in custody for another week. In those seven days, they will suffer further injury, further impoverishment. They are all fathers. Their families no longer have homes, or incomes.
I actually have no words to describe what I feel, except that I am a proponent of non-violence. I am frequently called in to bring about peace and stability where there is unrest. I frequently counsel communities out of uprising. But this. I question my stance every day.
But we should not be surprised. Inconsolable yes. But not surprised.
The system within which Oscar was vindicated of murder, is the same system that injures the already injured. And causes further destruction to the already disempowered.
South Africa, stop beating yourself up about this. You are not going to get what you want in this system.
The law and justice are not the same thing. One is about the application of human-made rules. The other is about restoring things to how they should be. It is time that we allow ourselves to re-imagine constructs that steward justice, ecomomics and social well-being. And oce re-imagined, act.
We can’t keep trying to answer the problem of violence with violent systems and expect that we will achieve anything.
So what are the alternatives? I will start unpacking some alternatives, the way I see them, with particular relation to the Oscar matter over the next few weeks, but with the broader intention of seeking alternatives that bring restoration to people in general, mostly those how are currently disabled under a system that favours the economically empowered.
As always, peace
Sheena St. Clair Jonker
ADR Network SA and the Access to Justice Association of Southern Africa