Source: (2006) Paper presented at the conference "The Politics of Restorative Justice In Post-Conflict South Africa and Beyond", Cape Town, 21-22 September.

Proponents of Restorative Justice in the West often forget that Africa is the cradle of R.J. Social evolution in pre-industrial African societies and saw the move from private vengeance to group retaliation which, in turn, paved the way to a system of composition, the earliest form of R.J. The current punitive system was imposed by the colonial powers and surprisingly remains in place long after independence was achieved. It is baffling that despite the manifest advantages and benefits of R.J. over a punitive, retributive system, whose sole aim is to inflict pain and suffering on the wrong-doer, there is still reluctance to do away with the ideas of expiation and penitence in favour of reconciliation and compensation. The strong support for victims of crime, coupled with the fact that victims are the main losers in a punitive system of justice, have not succeeded in convincing politicians, lawmakers or the general public to abandon this medieval practice. And yet, the destructive and detrimental effects of punishment are too evident to ignore. There are many reasons why punishment can never be an appropriate response to harmful and injurious acts. The unanimous view is that for punishment to be morally acceptable in a democratic just society it has to be proportionate to the injury or the harm done. This noble objective of fairness is utterly impossible to achieve in practice. This is why Transitional Justice is becoming the preferred mode of dealing with atrocities committed by previous regimes in countries in transition to democracy. All this suggests that the time is right for a paradigm shift in society’s response to crime. Many years ago I argued that this can be achieved by moving from a guilt orientation to a consequence orientation thus removing the artificial boundaries arbitrarily erected between civil and criminal law. This goal will hopefully be attained by the implementation and full institutionalisation of Restorative Justice. (author's abstract)


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