Is Punishment the Appropriate Response to Gross Human Rights Violations? Is a Non-punitive Justice System Feasible?

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)