23 May 2022

Restorative justice is believed to be the oldest form of conflict resolution.

In the criminal justice system, the starting point in applying the philosophy of restoration is to acknowledge that harm has been inflicted on the victim by the perpetrator, says Dr Heather Strang of Cambridge University.

Presenting at a two-day workshop on alternatives to imprisonment organised by the University of Botswana (UB) in partnership with Cambridge University law departments in collaboration with Botswana Chapter of the International Association of Women Judges, in Gaborone on Friday, Dr Strang said restorative justice was in the United Kingdom used as an alternative and the most common solution of resolving conflicts as it was more of reconciling.

She said in Botswana, the concept could be underpinned by the principle of humanity to others (Botho), where parties were urged to resolve conflicts in a cordial manner.

Dr Strang said the concept was applied on the smallest disputes all the way to the one deemed most serious, therefore, could be used as a supplement to traditional criminal process of restoring order in the society.

Dr Strang posits that restorative justice was a viable community-based mechanism for regulating criminal behaviour.

She said applying the concept, the starting point was for the guilty party to acknowledge causing harm and volunteer to restore peace.

Therefore, Dr Strang said both parties must have a voice, adding that the process was conducted in a fair manner.

“The offender must be accountable and be prepared to make peace,” said Dr Strang, further stating that when a perpetrator was offered an opportunity to be confronted face to face by the wronged person, the offender would better understand the consequences of their actions.

Dr Strang said applying the concept of restorative justice was similar to what was done in South Africa when investigating and resolving crimes that were done in retaliation to the apartheid government.

She said through the Truth and Reconciliation Commission, those who had committed crimes against humanity were afforded a platform to present their cases and plead pardon from those they had wronged.

She said the process was aimed at reconciling the people of South Africa and restoring the principle of Ubuntu/Botho.

Dr Strang said the process had been tested. Therefore, where possible was viewed as the most appropriate manner of resolving conflicts compared to the normal process of going through a court of law.

She said studies done in the UK on the use of restorative justice revealed that compared to cases that were tried in courts of law, offenders who had undergone the process were less likely to repeat the offence. However, Dr Strang said the process was not immune to challenges as in some cases parties failed to reconcile, opting to settle through a normal court of law.

She further said victims who reconciled with the offenders through the process were healed better than those who were given justice in a court of law.

Dr Strang said a plea for pardon that was done face to face was more powerful as the victim could feel that the offender was determined to make peace.

She said some of offenders were offered an opportunity through the process to reconcile with their victims when they were on the verge of being released from prison, in that the reconciliation process made the convict to feel comfortable and welcome into the community, which reduced chances of repeating the criminal acts.

In addition, Dr Strang said chances of victims revenging was reduced through restorative justice.

She, therefore, recommended that the country’s justice system must invest in the process, as it was less costly, effective even in more serious crimes and those involving elderly people. “Focus on what you must do to make restorative justice more effective in your society,” said Dr Strang.

Meanwhile, Dr Ikanyeng Malila from the Department of Sociology at UB indicated that Botswana was an outlier as its justice system was focused more on making punishment severe, as witnessed by the use of capital punishment and excessive use of imprisonment.

Dr Malila said custodial sentence appeared to be the most preferred and standard form of punishment on offer and suggested that restorative justice and other non-custodial forms of punishment must be encouraged.  ENDS