Restorative justice, premised on therapeutic jurisprudence, has become a global phenomenon in criminal justice systems. Resonating with, and in some cases drawing from indigenous conceptions of justice, it offers both an alternative understanding of crime and new ways of responding to it. Restorative processes include victim-offender mediation, conferencing and circles; restorative outcomes include apology, amends to the victim and amends to the community.
Justice is the recognition of the unique inherent rights and privileges of an individual in his interaction and participation in socio-economic and cultural exchange with other members of society. Justice should be anchored on an even and open process, beginning with how you enter the justice system, sitting and procedural steps, including language of interaction. The approach or process must be one that puts the victim, offender and community in direct involvement,to determine answers and responses to infractions and violations of social norms. In other words, any process that does not avail or empower those directly involved or affected by an offense in the resolution of the infraction, is not likely to deliver appropriate justice, unique and therapeutic to the individuals involved.
PEACEABLE JUSTICE IS PROCESS DEPENDENT
Process is from the Latin, Processus and means Progression, progress, process, move, proceed. The word is synonymous with Procedure, summons. Law is comprised of two main compartments, Substantive and Adjectival. The later provides access and channel while the former encapsulates the rights, privileges and remedies. It is the procedural or process law that provides the way and method of ventilating your case, in a way that does not disadvantage or catch the other party unawares.
Both adjectival and substantive law are set in our statutory and regulatory books, particularly in Criminal law and practice, anchored on the Administration of Criminal Justice Act 2015 and the Evidence Act. Have both systems produced peaceful justice? Not exactly. We have been burdened by often conflicting technical and substantive justice. Shouldn’t justice just be justice? What has coloured it, in a sense, the process. The process determines what you can bring to it or otherwise.
It has often been argued that, it is the process that legitimizes the product as well as affirm its quality, effectively determining its repute and acceptability. It is trite in our jurisprudence that once the process of an outcome is flawed, its product no matter how alluring, has no weight.
In restorative justice, however, its processes are mindful of just one goal – justice – Healing justice for offender, victim and society. While the processes in Anglo-Saxon criminal justice adjudication is rigid, does not admit of expression of emotions because of its processes; restorative justice, on the other hand, admits of expression of emotions. The former asks, what law has been broken and what is the prescribed penalty? Restorative justice asks, who has been hurt by the crime, who is responsible, who suffered hurt, how can it be remedied?
These two systems of justice and different sets of questions, certainly elicit different processes to get at the justice of the matter, whose end product, ordinarily should be Shalom!
It is trite in our jurisprudence that, no matter how well a matter is conducted, if the procedure is flawed, the outcome is a nullity. Typically, a mathematics teacher is not just interested in the answer but, importantly how you got your answer.
Why is process so important? It is because it is the mechanism of exposure and discovery. Concepts such as audialterampartem, fair hearing are key justice process cliches in any attempt to determine the justice of a matter.fairness, equality and access are the basic principles of justice.
Processes are very important, premised on access to resources, equity, participation, diversity, and human rights.
To fully discover the offender and his offense, the victim and his/her hurt, an effective ventilation mechanism is critical to help the offender take responsibility, make amend, avoid repeat and healing for the victim.
’Therapeutic jurisprudence suggests that it is not only the content of a case but also the process used by the judicial officer in dealing with the case that affects a person’s wellbeing ‘’ It focuses on the unique needs of the individuals affected by specific incidents of crime and invites them to participate in a personalized and private experience where they have the opportunity to consider what is necessary to help them heal’
Therapeutic jurisprudence builds on the collaborative and consensual processes, not only to determine the criminal complaint but importantly, in offender treatment and rehabilitation programmes that reduce recidivism. The key therapeutic element or healing influence is, the direct involvement of the parties in discussing and agreeing on what needs to be done in resolution of the offence and how to prevent the offending behaviour for the future.
Restorative justice is a very good and growing model of therapeutic jurisprudence in criminal justice programmes, because:
It focuses on the unique needs of the individuals affected by specific incidents of crime and invites them to participate in a personalized and private experience where they have the opportunity to consider what is necessary to help them heal. Those involved in a matter must be in a position that they can freely tell their stories, decide what they consider suitable, appropriate and adequate amelioration for closure.
What are some of these processes?
Mediation – As an approach to resolving criminal conduct and its aftermath, is traceable to Canada. In a 1974 case of two young persons aged 18 and 19, who under intoxication, vandalized houses and cars of 22 persons. The case is generally referred to as the ‘Elmera Case’
Rather than sentence the young men to jail terms, the judge took the advice of his probation officer Mark Yantzi, who was concerned with how to break the vicious circle of young recidivists, to sentence the two young men to meet their victims. Emotions were expressed, apologies offered and reparations made. Victims were validated, had closure and healing. Offenders were re-integrated without stigma. The primary goal of offender-victim mediation is to provide a conflict resolution process which is perceived as fair by both the victim and offender. Offender and victim meet in a safe and conducive place with an intermediary to help them manage their meeting, to attain their justice objective.
Conferencing – As an approach in response to young persons in conflict with the law, is traceable to New Zealand. The government in 1989 enacted the Children, Young Persons and their Families Act. The Act had a provision for family group conference. This practice, in large part, is traceable to the Maoris, who culturally are communitarians and usually resolve infraction by their young persons through a collective family conversation, involving both offender and victim to discuss the problem and find solutions. An Australian police officer, named Terry O’Cionnell, learned about the New Zealand practice and adopted it as an alternative to charging young person with juvenile offences. The process in Australia is called the “wagawaga”, a model similar to the New Zealand family group conference.
This approach works not just in New Zealand, it works here in the restorative justice centres within the Ikeja/Ogba magisterial district. It was a case of assault that caused grievous bodily harm. The offender knocked out 7 teeth from the victim’s mouth. The offender could not afford replacing the victim’s teeth, the Facilitator in her wisdom, summoned family and friends of the offender. The replacement decision was affirmed, family and friends made financial contributions to fund the teeth replacement surgery and treatment. In addition, the offender had a community service punishment of washing dead bodies in a mortuary for 14 days. That was a punishment appropriate to victim reparation and offender reintegration.
Circles – As a restorative justice approach in response to crime can be traced to Canada, variously called sentencing circles, community circles and healing circles. The practice again, as in the New Zealand practice is traceable to the First nation people of Canada. In our traditional culture how did we view and respond to crime? Elders met with both the victim and offender to discuss what had happened, why it happened and how it can be resolved. Whatever was agreed and sanctioned by the elders was biding.
These processes are open, non-technical, direct participation of those who are directly affected by the crime that has occurred. It is allowed for parties to express emotion, looking at what happened, how and why it happened and what it will take to assuage the hurt of the victim. The end product will be justice as arrived at by the parties not just state-defined and restricted justice.
Restorative justice processes allow free unfettered ventilation, a process that gives emotional release and empowerment. Parties take responsibility in their own matter and not being a spectator, only able to talk through a third party – a lawyer. Often not quite capturing the emotions and sentiments of the victims’ hurt and loss nor yet the offenders’ pains and sufferings; it remains justice without peace with the options of appeal or sulking, depending on the capacity of persons concerned.
This advocacy piece is contributed by Benson Ngozi Iwuagwu Esq. Executive Director, Prison Fellowship Nigeria.