Restorative Justice and the South African Truth and Reconciliation Process

Abstract

It has frequently been argued that the post-apartheid Truth and Reconciliation Commission (TRC) was committed to restorative justice (RJ), and that RJ has deep historical roots in African indigenous cultures by virtue of its congruence both with ubuntu and with African indigenous justice systems (AIJS). In this article, I look into the question of what RJ is. I also present the finding that the term 'restorative justice' appears only in transcripts of three public TRC hearings, and the hypothesis that the TRC first really began to take notice of the term 'restorative justice' after April 1997, when the South African Law Commission published an Issue Paper dealing with RJ. Furthermore, I show that neither the connection between RJ and ubuntu nor the connection between RJ and AIJS is as straightforward and unproblematic as often assumed. 1 A draft version of this article was presented at the conference 'Conceptions of Justice', Aarhus, 28 June 2012. I want to thank all those who were present for their comments. Furthermore, I want to direct special thanks to Steen Wackerhausen, Aase Rieck Sørensen, Birgitte B.N. Gade and Lucy Seton-Watson. I am particularly grateful for your guidance and comments. Christie, Randy Barnett and Howard Zehr during the period 1950-1990. I will also explain that today, the term 'restorative justice' is used by so many different people, in so many different contexts and for so many different purposes, that the meaning of the term has become quite vague. There is no agreement on what RJ is. The next thing I will do is return to the issue of RJ and the South African truth and reconciliation process. Firstly, I will present the finding that the term 'restorative justice' appears only in the transcripts of three public TRC hearings (one victim hearing and two special hearings), whereupon I will explore the use of the term 'restorative justice' in the Truth and Reconciliation of South Africa Report (hereafter 'the TRC Report' or simply 'the Report'). The understanding of RJ in the TRC Report is inspired by the understanding of RJ in Issue Paper 7, published by the South African Law Commission in April 1997. It is my hypothesis that the TRC first really began to take notice of the term 'restorative justice' after the publication of this Issue Paper. If this is true, then it does, to a considerable extent, represent a retrospective self-interpretation when the Report describes the TRC as an institution committed to RJ. In the last part of the article, I will show that in post-apartheid South Africa, a number of people have argued that RJ has deep historical roots in African indigenous cultures by being congruent with ubuntu and African indigenous justice systems (AIJS). This needs to be understood within the context of the call for an African renaissance in post-apartheid South Africa, and the call for Africanization in post-colonial Africa more generally. If it could be shown that RJ has deep historical roots in African cultures, then this would have legitimizing effects on RJ among people who ...

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