Justice is reconciliation [Archives:2006/913/Opinion]

January 19 2006

By: Desmond Tutu
In South Africa, indeed around the world, we are raised on a strict diet of justice as retribution. With violent crimes on a shocking upsurge, with the hideous crimes of child rape and abuse on the increase, there are nowadays frequent calls – backed by wide public support – to restore capital punishment. Mercifully, South Africa's Constitutional Court has ruled that the death penalty – which South Africans eliminated at the same time we were liberated from apartheid – is unconstitutional.

Sadly, in many places in the world, it seems that men and women have not advanced beyond the biblical admonition of “an eye for an eye” in their yearning for retribution. Indeed, some Muslim countries amputate the hands of convicted thieves in public. But that biblical adage was in fact invoked originally to curb blood feuds from claiming the innocent relatives of the person who committed the killing. “An eye for an eye” asks that the culprit should be the sole target, and not others, whose only crime was to be related to him.

So the “eye for an eye” adage was not intended to mean what it has come to mean, namely that killing be paid for by another killing. Given the brutality of the apartheid era, that would have never worked in my homeland.

Some South Africans called for Nuremberg-type trials, especially for perpetrators of those atrocities that were designed to maintain the vicious apartheid system. There were demands that the guilty be brought to book.

But we were fortunate in that Nuremberg was not really an option for us. Nuremberg happened because the Allies inflicted unconditional surrender on the Nazis and so could impose a so-called victor's justice. In our case, neither the apartheid government nor the liberation movements could defeat each other. We had a military deadlock. Moreover, in the case of Nuremberg, the prosecutors and judges could pack up their bags after the trial and leave Germany for their several homes. We had to make our homes in this, our common motherland, and learn to live with one another.

Such trials would probably have gone on nearly forever, leaving gaping wounds open. It would have been difficult to procure the evidence to get convictions. We all know just how cunning bureaucrats can be in destroying incriminating evidence.

So it was a mercy that our country chose to go the way of the Truth and Reconciliation Commission – granting amnesty in exchange for the truth. This was ultimately based on the principles of restorative justice and ubuntu.

At the TRC hearings we were exposed to gruesome details about atrocities that were committed to uphold or to oppose apartheid. “We gave him drugged coffee and shot him in the head and then we burned his body. As it takes 7 – 8 hours for a human body to burn, we had a braaivleis on the side, drinking beer and eating meat.” How low men can sink in our inhumanity!

Each time such horrible stories were published, we had to remind ourselves that, yes indeed, the acts were demonic, but the perpetrators remained each a child of God. A monster has no moral responsibility and so cannot be held accountable; but even more seriously, designating someone a monster closes the door to possible rehabilitation. Restorative justice and ubuntu are based firmly on the recognition of the fundamental humanity of even the worst possible offender.

We cannot give up on anybody. If it was true that people could not change, once a murderer always a murderer, then the whole TRC process would have been impossible. It happened because we believed that even the worst racist had the capacity to change. And I think we in South Africa have not done badly; at least that is what the rest of the world seems to think of our transformation and the TRC process. Because an “eye for an eye” can never work when communities are in conflict – reprisal leads to a counter-reprisal in the sort of blood spiral we are seeing in the Middle East.

The type of justice South Africa practiced, what I call “restorative justice” is, unlike retribution, not basically concerned with punishment, it is not fundamentally punitive. It sets high store by healing. The offence has caused a breach in relations and this breach needs to be healed. It regards the offender as a person, as a subject with a sense of responsibility and a sense of shame, who needs to be reintegrated into the community and not ostracised.

There is a wealth of wisdom in the old ways of African society. Justice was a communal affair and society set a high store by social harmony and peace. The belief was that a person is a person only through other persons, and a broken person needed to be helped to be healed .What the offence had disturbed should be restored, and the offender and the victim had to be helped to be reconciled.

Justice as retribution often ignores the victim and the system is usually impersonal and cold. Restorative justice is hopeful. It believes that even the worst offender can become a better person.

This does not mean being soft on crime. Offenders must realize the seriousness of their offences by the kind of sentences they get, but there must be hope, hope that the offender can become a useful member of society, after paying the price they owe to society. When we act as if we really believe that someone can be better, is better, then they will often rise to our expectations.

Archbishop Desmond Tutu is a winner of the Nobel Prize for Peace.

Copyright: Project Syndicate, 2006 (with the permission of Archbishop Desmond Tutu)