BY DANIEL JUOL NHOMNGEK, KAMPALA, UGANDA.
May 31st, 2017(Nyamilepedia) —— 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 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.
the author is South Sudanese Human rights lawyer and can be reached through: juoldaniel@yahoo.com
