Decolonizing Law through Restorative Justice

Decolonizing Law through Restorative Justice

. 9 min read

Ideally, when we think about the law, we ideally view it as just, fair, and equal. However, the harsh reality of legislation is that it has also been used as a tool to oppress, incarcerate, and dispossess marginalized people across the world. For example, widespread systems of law inspired by European legal tradition were imposed on non-Western societies during the process of colonization. While most people have come to recognize the terrible harms caused by colonialism, many legal systems are existing holdovers from colonial periods, serving entrenched interests that perpetuate colonial power structures. Such powers have been seized by socially and economically privileged groups to the detriment of Black, Indigenous, and people of color (BIPOC) communities, communities where the law has long failed to uphold the promise of justice, fairness, and equality—in other words, equal protection.

With conventional justice systems [...] the truth becomes secondary to the strength of an argument and the resources necessary to acquire legal advice, leading to disparate outcomes that often reflect socioeconomic inequalities.

Predominant legal systems are adversarial and retributive, focusing on the assignment of blame and suitable punishment. An alternative system is that of restorative justice, which prioritizes reconciliation and holistic community healing over punishment. In communities where enforcement of the law has resulted in theft of land and mass incarceration, principles of restorative justice have long been used to avoid relying on a broken judicial system. In North America, the restorative justice movement has been informed to a great extent by the teachings of First Nations in Canada and the United States as well as the Maori of New Zealand. Restorative justice also has deep roots in Africa, where it was the predominant justice structure in many communities prior to the arrival of colonists. As such, restorative justice is far from a new concept, but its adoption by postcolonial societies has only taken place in more recent decades.

Unlike most contemporary legal systems, restorative justice views crime mainly as a wrongdoing committed against an individual rather than the state. It is victim- and community-centric and integrates the understanding that criminal behavior is due to adverse social conditions rather than an individual’s nature. The overarching goals of restorative justice can be understood as “restoring the losses suffered by victims, holding offenders accountable for the harm they have caused, and building peace within communities,” aims informed by the principles of encounter, repentance, and reintegration. Even though this interpretation of restorative justice most directly involves criminal law, its principles and practices are applicable whenever wrongdoing is perceived. Therefore, restorative justice broadly encompasses both criminal and civil law. A prime example of this versatility is the growing popularity of mediation and arbitration, two encounter-based alternatives to resolving conflicts in court.

Restorative Justice in Canada

One of the cornerstones in the implementation of restorative justice programs in Canada is Section 718.2 of the Criminal Code, which states that “all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” This means that incarceration is meant to serve only as a last resort, especially in the case of First Nations offenders who have “fundamentally different world views” when it comes to justice. Despite this encoded principle, First Nations individuals continue to be overrepresented in Canada’s prison system, making up 28 percent of incarcerated adult men and 43 percent of incarcerated adult women while representing only 5 percent of the adult Canadian population. The rates for youth are even more dire with nearly half of all incarcerated youth coming from First Nations groups. Many policy adjustments made in an attempt to increase deterrence and reduce recidivism, such as mandatory minimum sentences, disproportionately harm First Nations communities, and research has cast serious doubt over their general effectiveness and constitutionality.

Much of the push for restorative justice programs for youth came upon the realization that Canada had the highest rate of imprisoned youth of any Western country, including the United States.

Restorative justice programs in Canada fill a real need for sustainable justice practices that do not deprive communities of their members through incarceration or permanently stigmatize offenders, especially youth. Much of the push for restorative justice programs for youth came upon the realization that Canada had the highest rate of imprisoned youth of any Western country, including the United States. Models of restorative justice include victim-offender mediation, community conferencing, sentencing circles, and healing circles. The starting point for any restorative justice practice is the voluntary participation of an individual willing to accept responsibility for their actions. The accountability that is built into the process of restorative justice is vital to the prevention of future conflict, and likely contributes to the higher rates of satisfaction experienced by both victims and offenders when compared with Western criminal justice.

In Manitoba, the Canadian province with the second highest rate of incarcerated First Nations youth, the Southern Chiefs’ Organization (SCO) operates a restorative justice program that typically deals with youth, first-time offenders, and people accused of less serious charges. Individuals diverted into this program have to be willing to make amends to those they have wronged in their community. Once this willingness has been established, a community justice worker meets with them and performs a holistic assessment in order to determine “the accused’s social, mental, physical, and spiritual needs.” Family and community members are encouraged to take part in the process of transformation and healing, with the entire process taking roughly six months. In cases where this approach is unsuccessful, the offender is sent back through the criminal justice system, but the SCO reported in 2017 that 94 percent of its participants successfully completed the program. Each person that is successfully diverted from the criminal justice system represents thousands of dollars of savings, money that is better spent providing clean water to First Nations communities and funding community programs.

Given the similar successes of restorative justice programs across Canada, four defined entry points at which an offender can be diverted or referred to a restorative justice program have been created within the criminal justice system: the police, prosecutor, court, or corrections. Police can divert a case before any charges are laid, while the prosecution can refer an offender after charges are laid but before a conviction. After that, the court can defer to a restorative justice program after conviction but prior to sentencing. An example of this is the use of circle sentencing, during which community members are brought together in order to find a remedy that can be administered and monitored within the community. Finally, corrections can implement restorative justice after sentencing, prior to reintegration, by giving communities the opportunity to consult on an offender’s release plan. More serious offences are likely to be referred later on in the judicial process, allowing for flexibility and tailoring the system to suit specific needs on a case by case basis.

Restorative Justice in Uganda

The practice of restorative justice in Africa, similar to its implementation in North America, focuses on conflict resolution between members of the same community. The goal of the process is to help uncover the root of a dispute, frequently with the aid of fellow community members, and arrive at a common understanding of truth. This practice contrasts with conventional justice systems, where the main goal is to convince others of an accused’s guilt no matter what. The truth becomes secondary to the strength of an argument and the resources necessary to acquire legal advice, leading to disparate outcomes that often reflect socioeconomic inequalities.

In systems of restorative justice, where truth regains its primacy, the process of arriving at the truth involves a learning process that leaves participants better equipped to live in harmony with their community instead of feeling isolated and ostracized. When it comes to the reintegration of a community member who has committed a crime, retributive justice frequently leaves the community unprepared to reconcile the harm. In a retributive system, once punishment is served, the system is no longer concerned with the individual’s post-incarceration outcomes. Restorative justice, rather than overlooking community justice in favor of court justice, fundamentally recognizes the importance of community acceptance to criminal rehabilitation.

The wide variety of restorative justice practices used in different African communities were displaced by the imposition of retributive colonial law, systems which have mostly remained intact post-independence. The voice of the community in determining justice was replaced with the discretion of a small elite, eroding and erasing a rich legal tradition of community-based conflict resolution. The enforcement of retributive law has run into both cultural and structural barriers, such as the inaccessibility of courts to and lack of investigative resources for people living in rural areas. The justice system in Uganda is one of many faced with similar issues. After attaining independence from Britain in 1962, Uganda retained English common law as the basis for its legal system. Although this inherited system of law included provisions for customary law, under which restorative justice practices could be included, official recognition was dependent on the colonial administration and its perception of a legal system’s level of development. This regulatory discretion tended to favor recognition of single authority systems not dissimilar to Western systems of courts and judges, disregarding many other customary approaches.

Faced with growing discontent over the problematic implementation of an exclusionary and retributive legal system, in 1996 the Ugandan government enacted the Children’s Statute. This new legislation allowed for cases involving young offenders to be handled outside of court, focusing on restoration and reconciliation instead of punishment. Before 1996, sentencing within the court had also been limited to imprisonment, fines, or the death penalty, and given the inability of most offenders to pay fines, imprisonment was the most common outcome. This led to massive overcrowding in the prison system, a problem exacerbated by the court’s reliance on lengthy prison sentences and massive backlog of cases. Community service programs were introduced as an alternative to imprisonment, and research suggests that these programs have been successful in encouraging reconciliation and better reintegration for offenders. The Kampala Declaration, produced at a conference between the Uganda Prison Service and various human rights organizations (and later adopted by the United Nations), specifically recommended adopting non-custodial strategies used by other African communities, opening up the door for a greater return to traditional restorative justice measures.

Scholars have argued that restorative justice has the potential to address even the most serious of crimes and should be restored as a normative justice paradigm on equal footing with European retributive justice systems.

Restorative justice never lost its popularity in some regions of Uganda and played an instrumental role in reconciling communities in Northern Uganda devastated by years of civil war. Local Councils, the lowest level of Uganda’s criminal justice system, also incorporate some aspects of traditional restorative justice into the formal legal system. Members are elected by the local adult population, and judgements are made based on common sense and wisdom in alignment with the principles of compromise and reconciliation. Mediation has also been increasingly used as a non-adversarial tool for conflict resolution, saving court time and litigation costs. While results appear to be very promising, restorative justice measures have been mostly limited to minor offences and only applied at the grassroots level. Scholars have argued that restorative justice has the potential to address even the most serious of crimes and should be restored as a normative justice paradigm on equal footing with European retributive justice systems. Considering a broader application of restorative justice is especially salient when taking into account the post-conflict status of many communities, which require peacebuilding and reconciliation more than ever.

The Future of Restorative Justice

Restorative justice is by no means a magical cure that can suddenly rid communities of crime or a panacea devoid of administrative fault. There are many criticisms of restorative justice and its principles, not least of which is that the approach is too soft on crime and will fail to deter potential rulebreakers. However, participants attest that in many instances the restorative justice route was more difficult than conventional punishment because it forces the offender to confront the people who have been harmed by their actions. Furthermore, the “tough on crime” approach embodied by retributive legal systems has clearly failed to effectively deter crime and decrease recidivism, so it seems about time to give a system based on different principles more serious consideration.

Another concern associated with restorative justice programs is the pressure put on victims of crime to take part in meeting and discussing their experience with the perpetrator of the crime. It can be argued that conventional justice processes subject victims to similar stresses through the gruelling trial process, a potential trauma that may be better mitigated in a restorative program that gives all parties involved more personal agency and control over the process. In their current complementary form, restorative justice programs also require the consent of offenders and victims in order for a case to be diverted from the conventional court system. Victims are never forced to interact with an offender, and offenders who do not seek forgiveness or to take direct responsibility for their actions are subject to standard sentencing. Early research seems to indicate that recidivism rates in restorative justice cases are lower than when going through the traditional court system, although wider implementation is needed to generate more reliable study results.

As a global movement for defunding police systems grows and people express their concerns over the potential creation of a security void, it is worth remembering that conventional policing has long failed marginalized communities. Many of these groups have developed alternatives to the police and courts, relying instead on systems like restorative justice. In this light, worldwide calls to defunding the police become less intimidating when taken into consideration with the many community-based programs and strategies that already exist and can more than adequately fill in the gap created by a decrease in police presence. In a time where the often oppressive and colonial nature of the police as an institution is being recognized, the decolonization of the greater justice system it serves is a logical next step.