Recubrimiento interior del HAES: el ladrillo refractario

In traditional and informal justice systems, engagement of individuals and communities and language usage can be conceptualised as tools of legal empowerment. Johnstone (2011:18), for example, argues that the dynamic and flexible nature of traditional justice systems can promote legal empowerment. According to Johnstone (2011:18) “While it is often argued that fluidity leads to discrimination, it also renders customary systems capable of change and reform”. Johnstone (2011:18) further notes that, while such reforms “cannot be undertaken by outsiders, a carefully crafted intervention strategy can strengthen the process”. It is well

“established that that grafting ideas and processes borrowed from foreign legal cultures onto customary frameworks is unlikely to result in sustainable normative change. If traditional justice systems are to uphold rights, and users are to be empowered to assert them, processes must be locally driven and owned” by various stakeholders including paralegals; “the local will be most powerful in influencing the interpretation and application of the law, as well as moulding attitudes”. This creates an opportunity for legal empowerment and access to justice (Johnstone, 2011:19).

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Harper, et al (2011:174) argue that “customary justice actors are generally appointed within communities on the basis of status or lineage. Customary justice systems can support and reinforce power imbalances”.

However, empowerment cannot be transplanted or imported. Instead, it is likely to be effective when it grows from community engagement that identifies needs and initiatives”. Harper et al (2011:174) further argue that the monitoring of customary proceedings by local community members that seek to promote

“women’s, children’s and indigenous people’s rights, such as paralegals can challenge unfavourable power dynamics and help prevent the abuse of power”. Likewise, by monitoring customary proceedings, paralegals may help confirm that one’s rights are upheld.

Johnstone’s (2011:27) research revealed that “despite the challenges faced by rural people in accessing justice through the traditional justice system”, they prefer traditional courts and other justice forums over formal courts. The women that participated in the study said that the potential threat of lack of empowerment did not mean they would reject the traditional justice system and its processes. Bond (2010:427) concurs and points out that “women value their cultural identity even as they work to eliminate discrimination within that identity”.

Bond (2010:428) states that by “viewing African women almost exclusively as victims of their culture, the rights groups have historically undervalued the potential for African women to reformulate cultural policies within their communities”. Bond (2010:428) submits that the “Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the African Charter on Human and Peoples’ Rights (African Charter) are dismissive of culture and gender equality, respectively. The African Charter on the Rights of Women in Africa (the Protocol) attempts to remedy the shortcomings of the CEDAW and the African Charter”. Bond (2010:428) argues that “the Protocol provides for important procedural rights to ensure that women have a voice in the on-going examination and reformulation of cultural practice and traditional law”. According to Bond (2010:441), the CEDAW does not reflect the multidimensional and intersectional role of African women as both members of their cultural communities and advocates for gender equality within these communities. Simojoki (2011:47) concurs and states “there is something that is very captivating and promising about interventions that evolve from the grassroots”.

As to language, Dexter and Ntahombaye (2005: 12) argue that in pre-colonial times, traditional processes involved advice given “through patient and careful use of the language. After listening to the parties, those presiding would repeat the facts, showing that they were listening to each other and inspiring the parties to also listen to each other and have an open mind. Common-sense terms were used to characterise the case and explain their reasoning to the members of the public who attended”. Likewise, Wojkowska and Cunningham

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(2010:97) contend that language is very important in traditional justice deliberations. The fact that presiding officers speak the local language makes the traditional justice system more accessible and acceptable to the people it serves. The “emphasis on voice and expressing one’s own story in one’s own words can enhance empowerment, as the parties to the dispute feel confident and capable”.

Harper, et al (2011:172) argue that “participatory, deliberative methodologies, where the problem is often regarded as shared by the entire community, represent a double-edged sword. On the one hand, they allow each party to present their story in the language and style with which they are most comfortable, followed by discussion until consensus is reached. On the other hand, such processes raise questions of inclusiveness and can reflect community biases, particularly where certain groups dominate the deliberations”. For example,

“when men speak on behalf of their spouses and female relatives, the deliberations may perpetuate communal prejudices. Furthermore, an opportunity to express one’s voice is by no means a guarantee of equality and empowerment, particularly as certain voices may be more powerful than others” (Harper, et al, 2011:172) .

Chopra and Isser (2012:355) explain that “creating alternative sources of power such as community-based paralegals will advance dialogue between affected women and community justice providers”. Trained CBPs present legal information in an understandable way. Chopra and Isser (2012:356) describe CBPs as ‘insider’

agents that are legitimate contesters because they are from the same community as the women they serve.

They are “familiar with the socio-cultural and political contests in a specific community, and can therefore challenge systems in the right spot. Legal and justice institutions that have been shaped from the inside also allow outcomes that maintain women’s rights to their culture, and their right to change it”.

Literature shows that the question of whether either integration of multiple justice systems or parallel justice systems is suited “for access to justice and legal empowerment remains unclear. However, the availability of multiple legal forums helps women to make informed choices rather than being forced to take a particular legal approach”. The literature notes that access to justice for women will not be promoted by advancing a particular justice system; rather, according to Chopra and Isser (2012:358), it requires an “understanding and engagement with the process of contestation and social change through which power relations and rights are mediated”. This study helps test the theoretical concepts of forum shopping and legal empowerment by exploring the role of CBPs in community restorative justice.

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2.11 Interactive Nexus between Access to Justice and Plural Legal Systems

Although it is unclear as whether an integrated legal system would improve access to justice in rural areas, it seems that access to justice is interactive with each of the three justice systems here discussed. Scholars differ on how such interaction between access to justice and various justice systems should exist. Garwe (2007:33) advocates for the inclusion of all stakeholders in promoting access to justice and fighting crime, including ordinary people, NGOs, traditional authorities, and other justice “agencies set up by the government in the criminal justice system. The author notes that crime affects us all and should therefore never be left solely to the police, the courts and prison authorities”. Garwe reiterates that, “a well functioning criminal justice system is all-inclusive, and each actor involved in criminal justice plays an important role”.

Chopra and Isser (2012:354) argue that a formal law framework facilitates access to justice through a set of mechanisms that assist in addressing gender equality and discrimination and contest problematic practices.

On the one hand, the formal justice legal framework can hold government accountable to meet its international law and human rights obligations. On the other hand, it offers community members tools “to contest norms and practices that are not compliant with human rights or gender equity, such as through advocacy and strategic litigation. A human rights-based legal framework can also influence justice processes at local level. While they do not necessarily impact behaviour or lead to increased adherence to the law, formal judgements can be a powerful tool for women’s rights advocates to increase awareness of women’s rights”. The fact that formal law exists and the threat to use it brings about change in some people. As to the traditional justice system, Johnstone contends that processes must be locally driven and the fluidity of customary systems makes them capable of change as warranted (Johnstone, 2011:19). From the perspective of informal justice systems, Chopra and Isser (2012:354) see CBPs as a promising model for “injecting women’s rights at the community level, where they are not just acting as agents that take cases to the formal courts”. Chopra and Isser (2012:354) caution that “while there is plenty of evidence that CBPs have helped women to navigate systems, there is still a lack of empirical evidence on their impact on local power structures”. The findings from this study may help fill that empirical vacuum through, for example, data on interaction between CBPs and the traditional justice system.

2.12 Chapter Summary

This chapter examined access to justice in a variety of ways. A definition of access to justice was adopted that revolves around knowledge and exercise of rights, awareness of such knowledge and ways of exercising rights by service providers, effective and easily accessible infrastructure to access justice, and rendering quality services. Barriers to access to justice were discussed, especially those that affect women as this study

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focuses on rural women’s access to justice. Plural legal systems were delineated including the formal, traditional, and informal justice systems. In terms of the formal justice system, South Africa’s DVA which is the rule of law orthodoxy relevant to this study was examined. This Act is further discussed in relation to community restorative justice and CBPs in subsequent chapters. Turning to the traditional justice system, its historical evolution, and structure and functioning as well as its procedures, processes and jurisdiction were described and the strengths and weaknesses of traditional courts’ procedures, processes and jurisdiction were discussed. African living law was mentioned but not fully discussed as it is beyond the scope of this study.

The informal justice system was identified as the justice system that forms the basis of CBP practice through the use of community restorative justice; however, CBPs generally straddle plural legal systems. The informal justice system is further discussed in Chapter 3 in relation to community restorative justice and in Chapter 4 in relation to CBPs. This chapter concluded with a discussion of the interactive nexus between access to justice on the one hand and distinct, co-existing justice systems on the other. The following chapter reviews the literature on community restorative justice.

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Chapter 3: Community Restorative Justice: An Informal Justice System

3.1 Introduction

There is increasing academic debate on the use of restorative justice in domestic violence cases. A critical issue is whether restorative justice as an alternative to criminal justice is effective or even appropriate for such cases. This chapter discusses this issue as well as the definitions, theories and concepts relating to restorative justice. It highlights the debates in the literature on the use of community restorative justice (CRJ) in cases of domestic violence, use of the traditional justice system in cases of domestic violence as well as arguments for the simultaneous use of plural justice systems for such cases. There is considerable debate on whether domestic violence is a private or public matter as well as whether the traditional justice system is a private or public forum. While the debates and issues raised here remain largely unsettled and are the subject of continued empirical inquiry, this chapter provides a foundation to understand CRJ, with special reference to cases of domestic violence. A conceptual framework for exploring the problems and benefits associated with CRJ is presented being for the chapter concludes with a brief discussion of what appears to be an interactive nexus between access to justice, plural justice systems and domestic violence.

3.2 Community Restorative Justice, General context

Community restorative justice is a community-based restorative justice initiative that seeks access to justice using an informal (non-state) justice system, and is responsive to people’s immediate need for justice (Stapleton, 2007:4). It has developed through practice; CRJ procedures and processes “are tied to traditions and values passed down from generation to generation”. Indigenous communities have been practicing restorative justice at community level for many centuries. Before discussing the manner in which restorative justice can be characterised as CRJ it is important to examine the definitions and theories related to restorative justice.

3.2.1 Definitions

Scholars acknowledge that “there is no agreed definition of restorative justice” (Edwards and Sharpe, 2004:2; Latimer et al, 2005:131; Daly, 2006:135; Van Ness, 2008:96). Edwards and Sharpe (2004:2) argue that “restorative justice is both a philosophy and a practice”, and therefore a definition needs to capture both.

Daly (2006:135) contends that “restorative justice has not one but many identities and referents; this can create theoretical, empirical and policy confusion”. The literature notes that restorative justice may or may

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not include a focus on community involvement beyond the victim and offender. On the one hand, restorative justice is defined as a process that involves “those who have a stake in a specific offence that collectively identify and address harm, needs, and obligations, in order to heal and put things right as soon as possible.

Offenders become accountable through understanding the harm caused by their offences, accepting responsibility and taking action to repair the harm they have caused” (Zehr, 2002:37).

On the other hand, some scholars (Braithwaite, 2003:56; Latimer et al, 2005:131; Edwards and Sharpe, 2004:2) emphasise “the role of the community in restorative justice”. Braithwaite and Latimer’s respective definitions of restorative justice are thus expanded to embrace not just a victim-centred approach and offender accountability, but restoration of the affected community. For instance, Latimer highlights the importance of a community-based response to criminal behaviour (Latimer et al, 2005:131). This includes:

“(1) identifying and taking steps to repair harm, (2) involving all stakeholders, and (3) transforming the traditional relationship between communities and their governments in responding to crime” (Van Ness, 2008:96). For Edwards and Sharpe (2004:2), “restorative justice encompasses a set of values that guides decisions on policy, programmes and practice that restore communities, not just individuals”.

Smith (2010:258) argues that “restorative justice is an umbrella term that describes a wide range of programmes that seek to address crimes from a restorative and reconciliatory rather than a punitive framework”. Van Ness and Strong (1997:25) contend that “the term ‘restorative community justice’ stresses both the importance of community involvement and the value and potency of community action in crime prevention”.

Building on these definitions, this study investigates a restorative justice programme based at community level undertaken by community-based paralegals (CBPs) in KwaZulu-Natal (KZN). Therefore, the emphasis is on CRJ, beyond community involvement and community-based responses as explained by Latimer et al (2005:13); Van Ness (2008:96) and Van Ness and Strong (1997:25). This study is concerned with the community-based restorative justice approach applied by CBPs in response to domestic violence.

Community-based paralegals are an integral part of the communities they service. As discussed in Chapter 4, they co-create policies, practices and procedures with the community that reflect the local language and culture and the rural areas under traditional leadership where the CBPs and service recipients reside (Edwards and Sharpe, 2004:2). For the purposes of this study, the term ‘community restorative justice’

means a grassroots process driven by the community and implemented by local people from the same community.

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3.2.2.1 The origins of the terms and practices of restorative justice and victim offender mediation Scholars disagree on the origins of the terms and practices of restorative justice and victim offender mediation. Some contend that restorative justice originated in indigenous communities (Braithwaite, 2003:58; Skelton and Bailey, 2006:8; Louw, 2006:161; Alarid and Montemayor, 2012:451), while others (Sawin and Zehr, 2011:41); Van Ness and Strong, 1997:24, Ptacek, 2010:8) note that these terms are of western origin. Braithwaite (2003:58) maintains that all indigenous cultures have some deep-seated restorative tradition. Skelton (2011:469) and Louw (2006:161) contend that restorative justice is evident in the ancient African concept of ubuntu. In contrast, Sawin and Zehr (2011:41) and Ptacek (2010:8) argue that the field of restorative justice began in Ontario, Canada in 1974 when probation officer, Mark Yantzi requested the court’s permission for offenders and victims to confer. This, the authors claim, led to victim offender mediation (VOM). Van Ness and Strong (1997:24) contend that the term ‘restorative’ was coined in 1977 when scholar, Albert Eglash identified three types of criminal justice: restorative (restitution), retributive (punishment) and distribution (therapeutic treatment of offenders).

Skelton and Batley (2006:8) point out that the African traditional system of restorative justice was in place before the Eurocentric justice system was imposed on the indigenous people of South Africa. However, this is not well documented. Understanding the role of paralegals in indigenous communities may shed light on African traditional systems of restorative justice before European intervention.

3.2.2.2 The link between restorative justice and traditional justice system

Most scholars agree that there are links ‘between restorative justice and the traditional justice” systems administered by various indigenous people all over the world (Zellerer and Cunneen, 2001:248; Tshehla, 2004:13; Zehr, 2005:268; Skelton, 2011:475; Cunneen, 2011:113; Alarid and Montemayor, 2012:451). For example, Cunneen (2011:113) notes that early developments in “restorative justice in Australia, New Zealand and Canada were based on indigenous cultures”. Latha and Thilagaraj (2013:2) point to the resonance of restorative justice with dispute resolution mechanisms created by ancient Hindus in Indian villages. Similarly, Skelton and Batley (2006:8) observe that the modern restorative justice system, which became popular in the West during the 1970s, is closely linked to African traditional justice systems.

Zellerer and Cunneen (2001: 248) find it ironic that “after ignoring and more often trying to destroy indigenous legal systems, the criminal justice system is now exploring restorative approaches that have certain commonalities with indigenous justice systems”. More than a decade ago, Zellerer and Cunneen

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(2001: 248) pointed to a gap in the literature on the similarities and differences between restorative justice models and traditional justice systems, and noted that they are not one and the same thing. As far as present-day traditional justice systems are concerned, cognisance should be taken of the impact of European colonial lawmakers on customary law and traditional justice systems in Africa (Ndima and Ntlama, 2009:10) and on other continents.

Zellerer and Cunneen (2001: 250) submit that the sanctions used by indigenous people may go beyond what are considered restorative justice models such as temporary exile and withdrawal. Skelton (2007:231-238) notes that African traditional justice systems and modern restorative justice processes have both similarities and differences. In terms of similarities, both aim for reconciliation and to restore peace and harmony (p.

231) and both encourage party participation and ownership in decision-making (p. 236). In both systems, a rights-based orientation is tempered by group duties as a community (p. 231). Dignity and respect are very highly valued, consistent with the philosophy of ubuntu (p. 231). Neither process sharply distinguishes between civil and criminal justice (p. 233). The simplicity and informality of procedures enables both systems to allow improvisation and story-telling that makes sense to a party to the dispute. On the one hand the outcomes of the two systems are not based on case precedents by other courts (p. 234). On the other hand, both processes produce outcomes beyond the payment of money or goods; symbolic forms of

231) and both encourage party participation and ownership in decision-making (p. 236). In both systems, a rights-based orientation is tempered by group duties as a community (p. 231). Dignity and respect are very highly valued, consistent with the philosophy of ubuntu (p. 231). Neither process sharply distinguishes between civil and criminal justice (p. 233). The simplicity and informality of procedures enables both systems to allow improvisation and story-telling that makes sense to a party to the dispute. On the one hand the outcomes of the two systems are not based on case precedents by other courts (p. 234). On the other hand, both processes produce outcomes beyond the payment of money or goods; symbolic forms of