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Concerns about the effectiveness of traditional criminal justice systems have given rise to new approaches to criminal justice. One such approach is Restorative Justice, a theory that focuses on reconciling and reintegrating offenders into society rather than on retribution. This theory and its practical applications are explained briefly in this article.
What are the values and principles of Restorative Justice?
- Restorative Justice processes must comply with the rule of law, human rights principles and the rights provided in the South African Constitution.
- Restorative Justice must promote the dignity of victims and offenders, and ensure that there is no domination or discrimination.
- All parties must be provided with complete information as to the purpose of the process, their rights within the process and the possible outcomes of the process.
- Parties should clearly understand that they may withdraw from the process at any time.
- Parties must be given a reasonable amount of time to consider their options, when a restorative justice option is proposed.
- Referral to restorative justice processes is possible at any stage of the criminal justice system, with particular emphasis on pre-trial diversion, plea and sentence agreements, pre-sentence process, as part of the sentence, and part of the reintegration process, including parole.
- Participation in restorative justice processes must be voluntary for all parties, including victims.
- Victims and offenders should be allowed to bring support persons to the encounter provided that this does not compromise the rights and safety of any other party.
Although formal ‘restorative justice programmes’ were first introduced in countries such as Australia and New Zealand, restorative justice concepts are certainly not new to South Africa. In many South African communities, the way of dealing with children has traditionally included mechanisms that encourage children to take responsibility for their actions. This includes outcomes such as an apology, restitution and reparation, and restoring relationships between offender and victim.
When can it be applied?
Restorative Justice can be applied at any stage in the Criminal Justice System such as:
- Pre-charge (before a charge is laid).
- Pre-trial (after a charge is laid and before accused appears in Court).
- Post-charge (after charge, but before plea in court).
- After conviction, but before sentence.
- Post-sentence (for parole and re-integration purposes).
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Please feel free to contact Brian Kahn for further information or specific and detailed advice. Errors and omissions excepted (E&OE)