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The exercise of defining criminal deviance entails a complex and mystifying process often fraught with tension and paradox. The locus questions of who defines deviation and how it is defined remain the key “flash-points” in this debate. The crux of the matter is enmeshed in the dissatisfaction of the current criminal justice system which has maintained a highly positivist (clearly defined, scientific) approach to the notion of deviance. This positivist inclination is deeply rooted in rational choice and/or criminogenic theories (psychopathic explanations) and has adopted certain tenants of social control theory which rotate around three major “pillars” of rationalization for the institutions of criminal justice: deterrence, rehabilitation, and incapacitation (Kaplan 1973).
With the rise of transitional justice applications in post-war contexts (where gross human rights violations, mass atrocities, and genocide have occurred), these tensions around defining deviance and the location of justice have become even more pronounced. An alternative agenda is required in order to reframe the on-going debate around criminal deviance and its implications for the administration of justice.
An alternative agenda is emerging in the transitional justice field through the current revival of restorative, indigenous justice practices that are “filling in the gaps” of what constitutes satisfying human justice. Simply put, numerous forms of ancient indigenous justice that are restorative in nature are providing new lenses for reconfiguring what justice means and how it is implemented (Cobban 2007; Pouligny et al. 2007). There are three critical observations regarding this renewal of indigenous justice systems:
- The Transitional Justice field has unwittingly provided the scaffolding of language and the platform of dialogue for indigenous justice forms to surface in order to meet the desperate need for justice to be felt as transformative by local communities on-the-ground who otherwise are often left out of the national and international transitional justice discourse and accompanying mechanisms.
- These ancient forms of indigenous justice are offering coherent frameworks that engage ethical values and processes of facilitation that are necessary in order to critique and create new future hybrid models of justice.
- There are numerous paradoxes and negative externalities resulting from the attempts to concretely define deviance in the current Western legal system. Indigenous justice applications are showcasing the restorative corrective “DNA” to assist in redefining the meaning of human deviance away from a stagnant code of legislated behaviors toward a nested paradigm of human interaction that is negotiated through relationship ties, and the norms and mores of community networks.
What Is Transitional Justice?
The survivors of war, mass atrocities, and genocide across the Globe are crying out for justice. The question is: what does justice require? How is justice satisfied? What does justice feel like? Many say justice meets violence with violence – a revenge justice characterized by a visceral form of “blood rites” or a need to honor the memory of the dead who have been immortalized in a premature death of injustice (Ignatieff 1998). In its “civilized” expression this punitive justice is meted out in the form of state-sanctioned (legal) revenge in response to individual or communal (illegal) violence. This form of “retributive justice” is the dominant model of the western legal system which is based on the foundational notion that punishment (usually in the form of incapacitation or prison) results in individual change (rehabilitation) and collective restraint (deterrence). Some have relinquished the attainment of justice to a universal power beyond themselves – a Divine command, often requiring a form of “sacred violence” (Girard 1972). This is prevalent today in the political application of ancient legal codes such as the Mosaic or Sharia Law believed to be direct revelations from God and therefore sacred forms of justice. Others see justice as a human construct – a Natural Law. This concept emphasizes the rational law of “cause and effect” and that every action results in a ripple effect of consequential responses. The familiar adage of “you reap what you sow” contains this idea well. Social contract theorists such as Hobbs (1651), Locke (1689), and Rousseau (1762) are some of the best known proponents of this form of justice. Still others understand justice as social equity (freedom of choice), rights-based egalitarianism (fairness), and the search for the maximization of the “common good” – a kind of utilitarian or distributive justice (Rawls 1971; Sen 2009). Elements of all these conceptions of justice permeate the guiding principles of what is now termed Transitional Justice – a burgeoning field of systematic justice that aims to reconstruct the human and material capital of societies that have experienced mass atrocities (Hamber 2009).
Transitional justice involves a range of approaches that nation-states employ to address past human rights violations including trials and prosecution, truth commissions, lustration or vetting, reparations, reintegration of ex-combatants and war-affected populations, memorialization, and various institutional measures of reform and accountability (good governance, security sector, human rights, gender equity, and anticorruption structures). The said overarching aim of transitional justice is to end the culture of impunity and establish the rule of law in a context of democratic governance. To this end, the transitional justice field has identified eight broad objectives:
- Truth-telling at both the macro and micro levels
- Giving voice to victims – public platforms that “bears witness” to atrocities
- Ensuring accountability – perpetrator acknowledgement and responsibility
- Providing victim and survivor restitution and reparations
- Promulgating individual and collective healing and reconciliation
- Bolstering good governance structures that are sustainable
- Advocating for institutional reforms for the prevention of future violence
- Reinforcing public participation and dialogical democracy
What Is Restorative Justice?
In its best form, Transitional Justice should be restorative in nature. The field of Restorative Justice as an academic discipline and as a global practice movement is relatively young (early 1970s) with its contemporary origins rooted in experiments in alternative criminal diversion in Canada (Peachey 1989) and Indiana (Zehr 1990). However, in many ways it is simply a re-enactment of past practices of justice not too far distant in many ancient cultural traditions, but eclipsed by the current Western justice system (Braithwaite 2002). Restorative Justice is concerned with right relationships and the revitalization of community and collective harmony after a breach of violence. It is a justice that demands accountability (recognizing the harm and taking responsibility), making clear that no act that destroys human dignity goes unnoticed. However, along with this accountability it creates an avenue for reconstruction (equalizing power and addressing future intentions through restitution, reparations, and reconciliation).
Instead of a justice system that is obsessed with apportioning blame and shame, and administering punishment and isolation, restorative justice seeks to heal the harms of victims, rehabilitate offenders, and reintegrate both of them into community networks of support as a safeguard of justice. It is simple, but never easy. A comprehensive definition of restorative justice is:
a broad term which encompasses a growing social movement to institutionalize peaceful approaches to harm, problem-solving and violations of legal and human rights. Rather than privileging the law, professionals and the state, restorative resolutions engage those who are harmed, wrongdoers and their affected communities in search of solutions that promote repair, reconciliation and the rebuilding of relationships. Restorative justice seeks to build partnerships to reestablish mutual responsibility for constructive responses to wrongdoing within communities. Restorative approaches seek a balanced approach to the needs of victim, wrongdoer and community through processes that preserve the safety and dignity of all. (Center for Restorative Justice, Suffolk University 2011)
Definitions And Theories Of Deviance
In general, deviance is understood to be those actions or behaviors that stand in defiance to legislated legal boundaries (e.g., crimes) and/or culturally enforced social norms and mores (expected societal traditions and customs). Leading sociological thinking has extended the meaning of deviance to include any “thought” or “feeling” not just actions or behaviors (Douglas and Waksler 1982); deviance as contextually based in “a particular society at a particular time” (Dinitz et al. 1975); and deviance as having to do with “a disapproved direction and of sufficient degree to exceed the tolerance limit of the community” (Clinard and Meier 2008).
By in large, the rationalist-utilitarian conception of deviance remains dominant in the current Western legal system. This school of thought promotes a clearly defined set of “objective” legal codes that philosophically and practically delineate between deviant and nondeviant behaviors. Although to a lesser degree than the former, the current legal system has also given ample attention to the structural-functionalist approach to deviation which understands deviance as a necessary function in society that need only be managed effectively in order to maintain social equilibrium. The concept of “necessary function” entails the idea that through the existence of social deviance social service institutions and professional employment is created, social identity is formed, and a comparative standard of what is acceptable and unacceptable behavior is shared and reinforced for the “common good” (socialization). Conflict theorists, on the other hand, see the clear definition of deviance as an instrument of modern day institutions of domination (including the prison industrial complex) which are primarily concerned with maintaining the status quo in order to solidify power and harness the means for repressive social control – especially as it relates to class struggle, labor rights, and marginalized groups in society (Foucault 1977). Finally, there is a rising postmodernist critique (in the vein of microor symbolic-interactionsim) of the current Western legal system which would question the essence of the idea of deviance to the point of obscurity claiming that the very conceptualization and language of deviance as an illegal behavior is irrelevant and incomprehensible without a particular context to interpret them in. Thus, the two critical intersecting factors of analysis that lie at the heart of the debate around deviance theory are: Issues of agency (does the cause and responsibility of deviant behavior lie at the individual or collective level?) and issues of structural purpose (does deviance serve a functional or dysfunctional purpose in society?).
One of the best examples of how theories of deviance impact actual criminal offenders is found in what is termed labeling theory (Becker 1963). While there are many forms of labeling theory, when it comes to the present criminal justice system one could argue that the current penal codes serve as an official, state-sanctioned labeling process – often imposed for a lifetime (criminal offender stigmatization), without consideration of the particularities of context, void of the historical and relational complexities surrounding a crime, and bound to a mind-set and a timeframe of the present. This focus on the “present” labeling of a criminal offender does not allow for a process of reinterpretation (renarrating) of the past or for the opportunity to address future intentions such as exploring the possibilities of personal and relational transformation and/or creating new opportunities for healing and reconstruction. Winslade and Monk (2000) in their work on narrative mediation refer to this process of dealing with the past and the future as “deconstructing a conflict saturated story (labeling) and reconstructing a new story.” In summary, when the criminal justice system attaches a label to certain codified “deviant” activity it does so in a contextual vacuum, it opens the door for the labeled person to became a societal “scapegoat” and it denies the offender the opportunity to take responsibility, show remorse, and offer some form of redress for the wrong they have committed. In short, transformative change is denied.
Comparative Study Of Three African Transitional Justice Processes
Effective transitional justice processes call forth intersect-oral and multidimensional interventions; approaches that can coordinate communication and collaborative action across the vertical and horizontal planes of human organization. In this section, a brief comparative study of post-violence justice efforts in South Africa, Rwanda, and Sierra Leone will be highlighted with the intersections of the formal legal system, transitional, restorative, and indigenous justice applications, and their impact on the understandings of deviance in mind. In its broadest sense, transitional justice as a process has the overarching mandate to (re)define the meaning of, and to deal effectively with, deviant violence enacted at a mass systems-level of society.
The Truth And Reconciliation Commission (TRC) In South Africa
The South African Truth and Reconciliation Commission (TRC) represents an example of a state-sanctioned (official) structure set up to legally define and come to terms with deviance as it was expressed through the Apartheid system and the ensuing violent struggle for liberation. For this post-war reconstruction context, the criminal courts were the only other form of institutional justice that South Africans had at their disposal. While the TRC moved away from blanket amnesty (the primary experience of Latin/South America) and embraced conditional impunity, it fell short on a number of other critical measures. First, it was perceived to be perpetrator-biased as opposed to victim-centered in part because of the amount of time and attention given to the legal aspects (rights and procedural undertakings) of the amnesty applicants. For example, victim-offender interactions were seriously hampered by the legal constraint that restricted perpetrators from discussing the past outside the parameters of the amnesty hearings themselves. The perpetrator was liable in a court of law for any confessions or admissions of guilt expressed outside the amnesty hearings. Hence, in this case, the law actually stood as a barrier to accomplishing the essential outcomes of relationship-building and reconciliation, forms of deviant resolution. Second, the TRC functioned from a top-down approach which was successful in opening up a robust debate on reconciliation at a national level, but it failed to translate that reconciliation experience in practical application at the local community-level context. Across South Africa there was no formal interface between the TRC and other traditional, indigenous practices of justice, healing, and reconciliation, and as such many citizens are living with the ambivalence of daily encounters with past, unresolved deviance at a neighborhood level. Third, the TRC ended up making a once-off payment of money to its victims, thereby, failing to engage perpetrators and communities in creative, meaningful efforts at compensation and reparations that would restore dignity, build community, and bring some form of vindication to a violent, repressive past.
The South African TRC along with many other transitional mechanisms carried the heavy responsibility of dismantling Apartheid as a governmental system that had defined deviance in an illegitimate way (the black majority was seen as deviant because of the color of their skin, their unwillingness to support the Apartheid enterprise, and their declared armed struggle against minority white rule). The African National Congress (ANC) government, voted into power in the first all-inclusive elections in April 1994, had the onerous responsibility to transform this racially discriminatory definition of deviance in a legitimate manner that would have impact across all sociopolitical spheres and societal sectors. This dilemma presented a quandary to the ANC who had politically declared themselves as a nonracial, democratic government and yet from an ideological perspective, the surest way to legitimize their freedom struggle was to declare their revolutionary violence as justified and therefore out of reach of the definitions of deviance.
However, the TRC using its legal standing as an autonomous structure (not aligned or controlled by any political party) determined to address the deviant violence of the past and not to favor any particular political affiliation in the process. The TRC significantly accomplished this by equally applying the international standard of deviant violence: gross human rights violations (GHRVs) to all armed political groups in South Africa. The five categories of GHRVs covered by the TRC were murder, attempted murder, torture, kidnapping/abduction, and disappearance. All other Apartheid government violations were outside the purview of the TRC. Every fighting faction no matter of what political or ideological persuasion was required to make legal application for amnesty with the TRC. This egalitarian approach to past deviant violence was a relief to the foot soldiers of the Apartheid security forces, but for the Liberationist groupings (freedom fighters) there was outrage and protest as they understood themselves to be fighting a just and upright cause regardless of the violent means utilized. However, what this insistence on equal treatment of all GHRVs accomplished was to send a strong signal to all aspiring governments, military formations, and the citizenry of South Africa that GHRVs would not be structurally or criminally tolerated in the future.
As was earlier indicated, the TRC did not grant “blanket amnesty” and instead instituted a conditional amnesty clause requiring all amnesty applicants to make full disclosure, establish political motivation, prove they were a member of a bona fide political organization, show that their activities were proportional to their goals, and ensure that their case(s) fell within the timeframe (1960–1993) and GHRV categories of the TRC. Upon the receipt of each amnesty application, statements were then formally investigated in order to correlate and substantiate the truthfulness of the evidence presented.
Particular issues emerged out of the context of the TRC which revealed the nuanced complexity of working within the specificity of legislated definitions of deviance. First, in the process of negotiating the TRC legislation the white-factions of the Apartheid system insisted that the TRC amnesty hearings be conducted incamera thereby keeping the deviant violence of the Apartheid state hidden; covered-up except for only the designated few. The ANC flatly refused this demand on the claim that the granting of amnesty was already a significant political compromise. As a result, all amnesty hearings were held in public purview thereby opening up the space for the narrative discourse of the secret deviant political violence to be exposed and rearticulated in the shared memory of the national psyche.
Second, as result of these public hearings which were broadcast across the nation for the 2-year life-span of the TRC, social sanctions against the perpetrators were surfaced in the public domain. Many amnesty applicants stepped out of their positions in public office and were forced to search for employment in the private sector. Many changed identities, moved locations, and in essence went into hiding to start life over anew. This process of lustration and vetting sent a strong message to the present and future governing “powers” that deviant violence of this nature would not be tolerated in those leaders who have been entrusted with the stewardship of the “common good” of the country.
Third, as the amnesty hearings began to unfold increasing numbers of offenders began to claim Post Traumatic Stress Syndrome (PTSS) as the motivating rationale for their deviant behaviors. This trend, while substantiating a “legal argument” for impunity, caused considerable alarm in the victims’ communities and among the psychological fraternity. From the professional psychological perspective, while the symptoms of PTSS are often found in common between both victim and offender in a traumatic encounter of violence, to manipulate the PTSS diagnosis as a legal justification for committing acts of violent deviance on a consistent and protracted basis over time (such as performing acts of torture on political prisoners for decades) was not scientifically acceptable. In this situation, other explanations for this form of systematic, repeated violent deviant behavior were required. One possible explanation could be the notion of anomie which refers to an individual lack of the internal sense of guiding social norms (Durkheim 1897). Other explanations have their origins in the research on various antisocial personality and psychopathic disorders that revolve around the searing of conscience, lack of empathic motivations, and the suppression of social “anchors” of right and wrong behavior appropriate to healthy relationships with others (Hare 1999; Checkley 2011).
Gacaca Courts In Rwanda
Building on the South African TRC experience, Rwanda took their transitional process a step further and engaged in a state-sanctioned hybrid model of justice which entailed incorporating a community-based approach called Gacaca Courts (GCs) which were mandated to run parallel (complimentary and supplementary) to the formal legal process of an International Tribunal that had already been launched in Arusha, Tanzania. The GCs represented an innovative justice project birthed in the midst of a prison over-crowding crisis in Rwanda following the 1994 genocide whereby 120,000 prisoners accused of crimes of genocide were being held. Based on a traditional custom of dealing with a range of community disputes, GCs involved the community electing civic leaders/traditional elders who functioned as the third-party judges in each case. These nine community arbitrators were tasked with gathering as much information as possible about the genocide activity in their local village. They then brought together the survivors, accused offenders, family support networks, and the community at large (at least 100 persons needed to be in attendance for a hearing to go forward). Truth-telling was core to the process with the use of witnesses to corroborate the findings. Opportunity for offender admission of guilt, confession, and apology were emphasized throughout the process with the occasional possibility of survivor-offender mediation and reconciliation resulting from the procedure. Forgiveness, reduced prison sentence, compensation, or punitive discipline was then decided on (official sentencing) by the community judges.
With the closure of the GC process in April of this year (2011), the benefits of this process are believed to be myriad and the world is watching closely to see the long-term, potential success of this effort at building a sustainable climate of justice, healing, and reconciliation in Rwanda (Wolters 2005).
Some of the most stinging critique of the Rwandan experience of transitional justice has not been in relation to the internal-structure or effectiveness of the GCs hybrid justice approach, but instead the political interference of governmental ideology and policy that swirls around the national definition of “genocide” and as such the conception of deviant acts of violence. Vigilant against any language or action that smacked of “genocidal ideology,” the current government in Rwanda outlawed the use of the ethnic designations of “Hutu” and “Tutsi,” and to this day keeps a tight surveillance on any organizations that appears to only work with or favor one ethnic group to the neglect of the other. While this is quite understandable in lieu of the horrific nature of ethnic genocide that has transpired in that nation’s history, it has had the unintended consequence of “silencing” a rigorous and honest debate about ethnicity and genocide deviance as experienced in that country (Tiemessen 2004).
On top of this, in an eagerness to exonerate itself from the violence of 1994, and suppress all hints of genocide ideology in the country, the ruling party has embarked on a rigorous campaign to carefully distinguish between the language of genocide (organized violence intent on eliminating an entire ethnic group) and all other forms of violence (mass killings or massacres). On the surface this linguistic differentiation seems straight forward; however, for the narrative discourse of deviance being discussed in this research paper it has dangerous implications. First, it has allowed the ruling Rwandese Patriotic Front (RPF) government to excuse itself from implication in partaking in any form of deviant violence, claiming that whatever massacres or mass killings that may have transpired under its watch were strictly a consequence of war and in defense against the Genocide. Second, this clear definition of language infers that only Hutu people could have had genocide intentions and therefore they carry the responsibility for acts of past deviant violence. Third, as the GCs were set up to deal with the aftermath of the 1994 genocide specifically and not the historical violence in Rwanda generally, by implication the GCs appeared to carry a bias in favor of Tutsi and against Hutu (Mamdani 2001). Thus, with such a distinct political narrative of “genocidal ideology” as the only deviant form of violence and “massacres” and “mass killings” as justified forms of violent self-defense in the face of genocide, the conceptions of deviance have become partial and arbitrary for some communities in Rwanda. With over 100 years of genocidal history as a backdrop, a “thicker analysis” of the roots of genocide in Rwanda would need to take into consideration deviance as a product of “mimesis” especially as it relates to the deviance theories of social learning (Bandura 1977) and social disorganization (Kurbin and Weitzer 2003). Social learning theory emphasizes three critical phases: retention (observing deviant behaviors), reproduction (imitating deviant behaviors), and motivation (reinforcing deviant behaviors). Social disorganization theory speaks to the fundamental desires or needs for recognition, domination, and security that drive the performance of deviant actions especially as it relates to the phenomena of social stratification and enemy formation.
The pivotal learning here is that any process of transitional justice (whether in amnesty or prosecution) must hold an impartial interpretation of the deviant nature of violence to all persons or organizations involved in perpetrating gross human rights violations (GHRVs) regardless of the political-ideological persuasion, or whether or not one claims the “moral high ground” in the implementation of a militant struggle for freedom. While the process of the GCs allowed for a community-based micro-level complexity in the definition and management of criminal deviance to occur, at the macro-national level this contextualization of deviance was inhibited due to the government’s interference in the definition of “genocidal ideology” and its labeling effect to one ethnic portion of the population. Without a demarcation against violence as deviation across the board, there will remain a mind-set of victors (nondeviant winners) and vanquished (deviant losers) which will only lend itself to continued revenge cycles in the future. Plus, the transitional justice movement runs the risk of sending the signal that certain violence is justified and permissible if it fails to hold all perpetrators of violence in equitable standing (Lemarchand 1994).
Fambul Tok In Sierra Leone
After a brutal terrorizing 11-year civil war, Sierra Leone negotiated a peace settlement in which all militia and rebel movements (including the Revolutionary United Front – RUF) were granted blanket amnesty. In response to this unconditional amnesty, the International Criminal Court (ICC) seized the moment and set up a Special Court to apply prosecution measures against the highest ranking leaders responsible for crimes against humanity perpetrated during the civil war. At a national level, a Truth and Reconciliation Commission (TRC) was instituted in a bid to promote healing and restoration across the country. The TRC embarked on a truth-telling exercise seasoned with a collective historical rewrite and the spice of public “confession-apology-forgiveness” transactions. Unfortunately, under the weight of a voluminous final report, limited funding, and ineffectual mobilization of the international and national commissioners, the TRC struggled to find innovative ways to inculcate the ownership of justice and reconciliation at a community grassroots level.
However, one of the most promising civil society responses to this dearth of community instituted justice and healing processes is the Fambul Tok (in the local Kriol language this is literally translated, “Family Talk”). Fambul Tok was launched in early 2008 by a Sierra Leonean human rights organization, the Forum of Conscience with long-term support from Catalyst of Peace, a foundation based in the United States. Fambul Tok is touted as a community-driven effort that claims no formal state sanctioning or governmental political interference in its pursuit of reconciliatory justice.
Fambul Tok boasts the following vision: “Fostering sustainable peace in Sierra Leone through reviving our communities’ traditions and values of confession, forgiveness and reconciliation” (Fambul Tok, Annual Report 2008). The approach itself is based on traditional practices of resolving conflicts within the confines and safety of community-family networks. Planned, organized, and implemented within the local village context, the encounters integrate innovative measures of dialogical and relational justice in what is termed “truth-telling bonfires” and various traditional cultural cleansing ceremonies. These interactions are facilitated by local leaders and designated elders who provide the wisdom, moral structure, and social capital for the interface. Following these events, the momentum for reparations and reconstruction is capitalized on through practical activities of educational radio peace clubs, cross-faction football (soccer) games, and intercommunal farming projects.
Fambul Tok cases range from accusations of chicken theft during the war, serious assault, rape, and murder. The accused may be anyone from traditional community leaders, child soldiers, self-appointed militia fighters, and former army officers. For example, it was commonly known that some army officers played the role of soldier by day and rebel by night – they were euphemistically called “Solbels” by the villagers. This kind of layered violence is best understood through the social deviance theory of differential association (Sutherland 2006) and subcultural theory (Cohen 1955; Matza 1964). Differential association promulgates the idea that people will choose criminality if the balance of benefits for law-breaking outweigh the benefits of law-abiding. Subcultural theory grows out of delinquency research with urban gangs and suggests that societal subcultures form around values and attitudes that are conducive to crime and violence and as a consequence deviance then becomes the bonding agent for meeting the recognition and identity needs of individuals and groups.
Initially, 161 Fambul Tok ceremonies were planned at a chiefdom level around the country; however, the significance of this approach has spawned a great demand for this process at all levels of the society and as such there are plans to see thousands of these kinds of ceremonies conducted across the nation. With the Sierra Leonean TRC completed and the closure of the International Criminal Courts coming to an end, it is predicted that the process of Fambul Tok will play a leading role in securing a satisfying form of justice, healing, reconciliation, and ultimately durable peace in Sierra Leone for the future. The significance of this transformative approach is described as follows:
Fambul Tok … is a face-to-face community owned program that brings together perpetrators and victims of the violence in Sierra Leone’s 11-year civil war through ceremonies rooted in the local traditions of the villages that were affected. It provides Sierra Leonean citizens with an opportunity to come to terms with what happened during the war, to dialogue, to experience healing, and to chart a new path forward – together. (Fambul Tok, Annual Report 2008)
A paramount learning from this case scenario is that Fambul Tok shows the potential of community-initiated programs to deliver a satisfying form of restorative justice across a nation. Despite government inabilities to translate the reconciliation experience from the top echelons to the ground, Fambul Tok illustrates the spark of innovation and the creative genius of civil society and local communities when allowed to dream and act out a better future for themselves. A cursory comparison of African customary law (indigenous justice) and restorative justice practice reveals a great deal of overlap:
- Both have the objective of reconciliation and restoration of peace and harmony in the community.
- Both share the function to serve the goal of restoring human dignity to all parties involved in the wrong-doing.
- Both promote a normative system which stresses an individual’s duties, obligations, and responsibilities and not only their legal human rights.
- Both consider all offenses as human and personal wrongs against another person(s).
- Both employ procedures that are simple, cost-effective, and informal, yet powerful.
- Both encourage community participation and ownership of the process of justice; thus, those who have offended are more likely to be held accountable, to accept responsibility, apologize, and offer reparations/restitution for their wrong-doing.
Indeed, the very ideations surrounding the meaning and application of justice change in the process of reconceptualizing deviancy within the ambit of established community norms. When the significance of deviancy and the process of managing the consequences that result from deviant behaviors are placed within the worldview of broken relationships and breached harmony within community then justice becomes a socially constructed reality. Deviance and justice become contested subject matters that are negotiated through public participation, sustained dialogue, and deliberative spaces of narrative reiteration. In other words, an understanding of deviance that is embedded in human capital, social contracts, and community regulation is open to a whole new set of interpretations as opposed to the current justice system that defines deviancy in a particularly rigid, essentialist, and universal manner.
- In the first place, the definition of what qualifies as deviancy is much more flexible, nuanced, and complex in a community-based justice process than in our current justice system.
- Secondly, in a community-based justice process the understanding of deviancy becomes much more culturally appropriate and contextually situated and therefore can be more effectively sanctioned.
- Thirdly, the process of managing the consequences of deviancy is much more transitory (less legally binding and permanent) and less stigmatizing (it moves away from the current focus on labeling of offenders). Rupert Ross (1996) a Canadian magistrate writing out of the First Nations indigenous tradition where “sentencing circles” are used as a form of justice contrasts the current justice system (The Crown) as symbolic of an offender “degradation ceremony” whereas the “sentencing circles” are an example of an “reintegration ceremony.”
Considering the novelty of this discussion on deviance embedded within a community-sanctioned process, there are numerous divergent routes that could be considered for future research:
- Currently, there is very little debate or dialogue occurring between the legal fraternities and those working with indigenous justice processes. This is due in part to the fact that these two groups do not share a common language with which to talk about the meaning of justice and its applications. Further research is needed that will build “bridging” language between jurisprudence and the working values that guide indigenous justice processes so that a constructive conversation can be enabled between the two fields.
- How to measure the “satisfaction” of indigenous justice processes has not been clearly defined or articulated. Research that could contribute to the development of standard frameworks for monitoring and evaluation of indigenous justice systems is of critical importance in order to give these new forms of justice the wide-spread attention they need (Van der Merwe et al. 2009). A starting point could be to borrow from research efforts in the restorative justice field such as work done by Skelton and Batley (2006) who propose four critical sets of interactions that should be used to assess the practice of restorative justice: Encounter, Amends, Inclusion, and Reintegration.
- Other possible research topics to pursue relate to recidivism and decrease in deviant criminal behavior (longitudinal research on the impact of indigenous justice on recidivism rates is important), scale (can these indigenous justice systems be scaled-up to deal with the deviance of mass atrocities in a sustainable manner?), structure (what forms of hybrid western and indigenous models could be developed to more effectively contain deviance?), and application (What are the “intersectionalities” of micro and macro understandings of deviance and how can they be coordinated to efficiently administer justice?).
This research paper has explored various applications of the definition and resolution of criminal deviance within the frameworks of transitional, restorative, and indigenous justice contexts. The contrasts and integrations of state-and community-sanctioned justice systems as well as hybrid models have been described and critiqued. Out of the various African transitional justice experiences discussed above, one could deduce that there are a number of critical elements to the process of identifying and transforming deviance that should not be overlooked. First, the definition and resolution of deviance is best served from within its own indigenous tradition by an “insider-impartial” (trusted “in-context” leaders) that can facilitate all the stakeholders to the conflict in a balanced manner. Second, deviance is best understood to be a breach of community harmony, well-being, and order and therefore to repair this corporate fissure the victims, offenders, extended families, and community networks must all be involved; it is a communal problem. Third, in dealing with deviance culturally appropriate platforms for truth-telling, confession, apology, forgiveness, and reconciliation should be explored throughout the process. Fourth, in dealing with deviance material forms of reparations, restitution, and compensation are expected as signs of peaceful goodwill and as indications of human responsibility and obligation to make right the wrong. Fifth, in dealing with deviation symbolic gestures of ritual healing, cleansing, and resolution are an important means of reintegration of offenders, release of the victim-survivors, and psychosocial closure for all who have been affected by the violence.
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