Justice Is Reconciliation

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 realise 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.

 

- Project Syndicate * Archbishop Desmond Tutu is a winner of the

Nobel Prize for Peace.

 

 

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

realise 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.-

Project Syndicate * Archbishop Desmond Tutu is a winner of the

Nobel Prize for Peace.

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