Fwd: [sudans-john-ashworth] Why restorative justice is the key to peace and stability in South Sudan

[Elisabeth Janaina]

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From: John Ashworth <ashwor...@gmail.com>
Date: Mon, 29 May 2017 at 12:44
Subject: [sudans-john-ashworth] Why restorative justice is the key to peace and stability in South Sudan
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Why restorative justice is the key to peace and political stability in
South Sudan

Posted: May 28, 2017 by PaanLuel Wël

In Search for Justice: Why Restorative Justice the Only Means in
Addressing Human Rights Violation in South Sudan

By Daniel Juol Nhomngek, Kampala, Uganda

May 28, 2017 (SSB) — In different communities where we come from,
there is a notion of fairness. This is shown by the way we always
demand that those who are solving our problems must be fair.  It is
this notion of fairness that we term as justice. In legal
understanding, justice is defined as the legal or philosophical theory
by which fairness is administered (see; Definition of JUSTICE “in
http://www.merriam-webster.com).

Justice, being a concept understood in accordance with the community
as rooted in their deep understanding of fairness, it is therefore
important to state that justice is a moral virtue and since it is the
moral virtue, the way it is understood differs in every culture.

Indeed, in different cultures, there is a different way of
understanding justice as it depends on the way the victim and the
community in general understands the crime. This is because crime is a
creation of the community. In this respect, what the community
considers to be a crime is a conduct is contrary to its morals and
because of that it is prohibited by moral force of the society.

The moral force of the society is law. Hence, the law prohibits crime
which results from the conduct outlawed by morals of a particular
community. It is for this reason a certain conduct may be declared as
illegal and abhorred by the community. In doing that effectively, the
community puts down the law to provide punishment it in case of the
breach of such morals.

The fact that crime differs from one community to the other means that
a conduct like homosexuality is not a crime in some countries like the
USA and UK while in other countries like South Sudan, Uganda, Sudan
and more other countries it is considered to be a very serious crime
punishable even by death.

In relation to the above paragraph, it must be noted that whether a
certain conduct is prohibited by moral force of the community or not,
there is always a need for fairness when it comes to punishment. So,
before the law is applied in punishing a person accused of breaching a
prohibited conduct or crime, the authority punishing the accused must
be fair in applying the law.

Thus, the law, crime and fairness or justice operates in close
relationship. It is due to such symbiotic or close relationship
between law that always brings crime and the law into play when
defining justice. Thus, looking at the way crime, law and justice
relate, it is not hard to conclude that justice is a notion that
controls the conduct of humanity through the law.

Humanity survives on instinct and for that reason instinct is
developed with the development of human being as a way of responding
to wrongdoings as understood in accordance with morals of a given
community.

It is, therefore, important to point out that where the society is to
live in peace and harmony, the concept of and accessibility to justice
must be well-defined. It is because of that I have taken this time to
give an explanation to the question as to why justice, and in
particular, restorative justice is the only means in addressing human
rights violations in South Sudan.

However, before I go into discussion of restorative justice in
addressing the need for justice for the victims of South Sudanese war,
it is pertinent to highlight different types of justice.  These are—
Distributive justice or economic justice, which is about fairness in
what people receive, from goods to attention; procedural justice, this
is a principle of fairness, which is also found in the idea of fair
play; and retributive justice that works on the principle of
punishment.

The above three types of justice, besides restorative justices are
four justices that exist today. Nonetheless, since this discussion is
about restorative justice or corrective justice as it is known, I will
only concentrate on discussing it and why it is an appropriate concept
that should be relied on in finding permanent resolution to the
conflict in South Sudan.   Reflecting over restorative justice, the
question that comes immediately into our minds is: what is restorative
justice?

Restorative justice means an approach to justice that personalizes the
crime by having the victims and the offenders mediate a restitution
agreement to the satisfaction of each, as well as involving the
community (see; https://en.wikipedia.org/wiki/Restorative_justice).
This contrasts to more punitive approaches where the main aim is
retributive justice or to satisfy abstract legal principles as we see
in criminal justice in the Western World context.

As can be understood from its definition above, restorative justice
puts the victims at the centre where they take an active role in the
process, meanwhile, offenders take meaningful responsibility for their
actions, taking the opportunity to right their wrongs and redeem
themselves, in their own eyes and in the eyes of the community (visit;
“A New Kind of Criminal Justice”, Parade, October 25, 2009, p. 6).

The main objective of restorative justice is that it leaves the
relationship among the people intact and where such a relationship is
damaged then it restores it. It is for this main reason and others as
shall be explained shortly hereafter that made me to conclude that
restorative justice is the most appropriate type of justice that
should be adopted in resolving the current South Sudanese conflict.

In that respect, this discussion shall deal with the importance of
restorative justice in resolving the conflict in South Sudan. Thus,
the first importance of restorative justice is that it emphasizes the
aspect of reconciliation among the citizens and between citizens and
the government.  Through reconciliation, the confidence and trust in
the system are restored, and finally, lasting peace comes to the
country and because of that South Sudan needs restorative justice in
its conflict resolution.

Secondly, the restorative justice approach aims at helping the
offender to avoid future offenses. This is because the offender
accepts responsibility and victims forgive the offender with all his
or her heart. Hence, both sides believe that there is fairness as they
are satisfied with the outcome. In this way parties accept and trust
each other and then with time peacefully co-exist.

Thirdly, restorative justice considers crime and wrongdoing to be an
offense against an individual or community, rather than the State.
This helps in bringing wrong doer and the victims to dialogue. Hence,
restorative justice fosters dialogue between victim and offender.

 In the countries in which it is adopted as a method of conflict
resolution, it has shown the highest rates of victim’s satisfaction
and offender accountability. Restorative justice emphasizes
accountability through facilitating meetings between victims,
offenders, and the community at large. This creates trust and
confidence in the future system, which was previously destroyed
through the act of impunity.  In that regard, if restorative justice
is adopted in South Sudan, all South Sudanese will be satisfied and
because of that satisfaction permanent peace will be realized with
time.

Fourthly, as it has been observed, restorative justice is an important
contemporary expression of timeless standards of justice (see;
restorativejustice.org…). It is part of African heritage. For
instance, in Traditional African Societies of which South Sudanese
communities are part, restorative justice is the only type of justice
system known to all of them.

 In that respect, the concept of restorative justice contains the idea
that the criminal justice process should include the active
participation of all affected parties which is different from typical
Western Concept of criminal justice.

Nils Christie’s analysis, points out the problems of modern justice
systems found in Western World as they steal conflicts from their
rightful owners: the neighborhoods.  Nils came to the above conclusion
after witnessing a community court case in the Arusha province of
Tanzania, in which he suggested that Western criminal courts should be
replaced by victim-oriented courts that bring together the victim, the
offender and the broader neighbourhood.

Fifthly, criminal justice is appropriate where crime is committed by
individuals or where a given community is not viewed as part of larger
conspiracy or criminal group. However, in the case of South Sudan one
community levels another as enemies including the new born babies who
belong to that particular community are treated as legitimate target
of attacks.

As a matter of fact, in South Sudan people are seen as criminals by
virtue of their names and physical appearance. For instance, I, the
one writing this article am a potential target if I were to meet today
with some extreme members from Nuer, Equatoria, Shilluk and Western
Bhar El Ghazal and I can even be killed without any regret simply
because I am a Dinka.

In such a situation the best thing to do is to create a forum for
dialogue in which all people who have differences, mistrusts and
misunderstandings are brought together to iron out their issues as a
way of forging trust, confidence and unity among them through deeper
understanding. When the people have properly understood themselves, it
can be easy to forge a way forward that will result into the creation
of permanent peace.

In achieving that there is a need for national dialogue and this is
the reason the present national dialogue is important albeit its
shortcomings. During the dialoguing process one of the issues
discussed is the justice for the victims, which automatically be
addressed through restorative justice as criminal justice is no longer
appropriate.

Sixthly and in relation to the above discussion, criminal justice is
not an appropriate form of justice mechanism needed in South Sudan for
some reasons: the first reason is that what people of South Sudan need
is not prosecution of criminals as we see in criminal justice per se
but there is a need for restitution.

The restitution will be in form of development of the area affected by
war and reparation for the victims in material term. In that respect,
leaders must be forced to pay reparation for the victims and bring
development to the areas which are highly affected by the war.

In other words, there is a need for addressing issues of South Sudan
through social justice approach. This is where impoverished victims
are given the opportunity to describe their future hopes and make
concrete plans to transition out of state of war in a group process
with their relatives. Hence, in social justice cases, restorative
justice is used for problem solving.

It is because of the above reason, restorative justice deals with
issues of social justice as it precedes social justice. For example,
in the community concerned, individuals meet with all parties to
assess the experience and impact of the crime. Offenders listen to
victims’ experiences, preferably until they are able to empathize with
the experience.

Then they speak to their own experience: how they decided to commit
the offense. A plan is made for prevention of future occurrences, and
for the offender to address the damage to the injured parties.  After
victims and offender agreeing on the way, community members will be
ready to hold the offender(s) accountable for failure to adhere to the
agreement.

Seventhly, what makes restorative justice important in context of
South Sudan is that it is based on the following questions: who has
been hurt? What are their needs? Whose obligations are these? What are
the causes? Who has a stake in the situation? What is the appropriate
process to involve stakeholders in an effort to address causes and put
things right?

By asking the above questions, the restorative justice approach tries
to eliminate conflict and its causes that will result into restorative
justice that addresses the need for justice by the victims. When the
victims are satisfied with the process and the community believes that
justice is done that is when the permanent peace can be achieved.

We should, however, be careful in taking the views of the community
into account unless we are sure that the views reflect the larger
community’s views. This is because of the fact that minority elites in
South Sudan have dominant views in all talks, which always leave the
views of the larger rural community out in much solution to the
problems.

This means that there is a need to deal with both elites and rural
people if we were to get proper and real views that will form the
basis of our conclusion as to whether people are satisfied with whole
process of restorative justice or not.

Eighthly and final, the conflict of South Sudan constitutes the
political violence. This is a broad term used to describe violence
perpetrated by either persons or governments to achieve political
goals. In that respect, many groups and individuals believe that their
political systems will never respond to their demands as seen in the
case of South Sudan.

As a result, many South Sudanese now believe that violence is not only
justified but also necessary in order to achieve their political
objectives.

Similarly and as seen in different part of the world, many governments
believe there is a need for violence in order to intimidate their
populace into acquiescence. At other times, governments use force in
order to defend their country from outside invasion or other threats
of force and to coerce other governments or conquer territory.

In general,  political violence can take a number of forms including
but not limited to the following: Ethnic conflict; terrorism;
genocide; torture; capital punishment; police brutality; famine;
rebellion; rioting; revolution; civil war and counter-insurgency.

As seen above, what is happening in South Sudan has the similar
characteristics of political violence, which makes the conflict in
South Sudan to be more of a political violence than any other
violence. This is why it is undesirable for criminal justice to be
used in solving the conflict there. The foregoing assertion is founded
on the argument that in political violence, the country is always
divided into blocks which makes it hard to prosecute perpetrators
successfully without causing their supporters to resort into another
war.

For example, the supporters of Dr. Riek or president Kiir will never
accept to see either of the two men appearing in the International
criminal court unless they have consented to it. Moreover, if any of
the two men is taken to Court by force the war will never end and if
that is the case then what is the purpose of criminal justice?

There is no justice in simple term. Hence, for justice to be termed as
justice, it must address the needs for the victims, the society and
achieve lasting peace. In addition, citizens or people who are accused
of crime must accept that there was fairness. Without that then
justice is not done.

We may argue and argue as to what is the appropriate justice in South
Sudan but in my understanding for peace to prevail it must be based on
the concept of justice as ordinary people know and understand it not
the one which is diluted by the understanding by the English justice
system that emphasizes the individual’s responsibility. Individual’s
responsibility is not a concept that exists in African societies but
it was only introduced to Africa through colonialism.

In conclusion and based on the reasons given above, restorative
justice is important in resolving the conflict in South Sudan. This is
because when we see the relationship between Dinka and other
communities, it is highly strained and because of that there is a need
to dialogue in order to bring more understanding between them.

Criminal justice in this respect is inappropriate as it is the type of
justice system that is good for the people who will never co-exist for
the rest of their lives. In addition, it is not accepted by the
accused people that justice is done given the understanding of our
people of justice.

 Criminal justice instead of being seen as justice, it is going to be
seen by the victims as revenge and seen by the accused as unfair.
Consequently, this may destroy the ordinary understanding of justice
as fairness. Without believing that there was fairness then the people
will not believe that justice is done and due to that the conflict
will never end.

In case of having achieving little peace through criminal justice then
it will be postponement of the conflict which will erupt at any time
when their opportunity. In that respect, restorative justice is an
appropriate justice as it is understood by majority of the citizens of
South Sudan as many of them grew up practising it.

Criminal justice does not address the root causes of the conflict as
it does not take the views of the victims, the accused and the
community into account when solving the conflict. In short, since it
is a political violence as identified above, then, there is a need for
political solution and political solution involves restorative
justice.

NB//: the author is South Sudanese Human rights lawyer and can be
reached through: juold...@yahoo.com

https://paanluelwel.com/2017/05/28/why-restorative-justice-is-the-key-to-peace-and-political-stability-in-south-sudan/

END
______________________
John Ashworth

ashwor...@gmail.com

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This is a personal e-mail address and the contents do not necessarily
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