Abraham Mwansa
Abraham Mwansa
Outline of presentation Background and definition of restorative justice; Types of restorative processes and problems they encounter; Courtroom, customary and institutional Lobbying and Advocacy Issues and outcomes
Background and Definition Restorative justice is a process that ensures re‐fixing of a relationship, fix the damage that has been done between offender and victim and prevent further crimes from occurring. Restorative justice puts the emphasis on the wrong done to a person as well as on the wrong done to the community.
Background & Definition Cont’d Restorative Justice recognizes that crime is both a violation of relationships between specific people (Offender(s) and Victim(s)) and an offence against everyone ‐ the state It focuses on the needs of victims and offenders, instead of the need of the community to exact punishment.
Background & Definition Cont’d Victims are given an active role in a dispute and offenders are encouraged to take responsibility for their actions, "to repair the harm they've done‐ by apologizing, returning stolen money, or doing some community service”. It is based on a theory of justice that focuses on crime and wrong doing as acted against the individual or community rather than the state.
Background & Definition Cont’d Restorative Justice can involve a fostering of dialog between the offender and the victim, show the highest rates of victim satisfaction, true accountability by the offender and reduced reoffending.
Background & Definition Cont’d • In criminal cases, victims have an opportunity to express the full impact of the crime upon their lives, to receive answers to any questions about the incident, and to participate in holding the offender accountable for his or her actions. • Offenders can tell their story of why the crime occurred and how it has affected their lives. • Offenders are given an opportunity to make things right with the victim, to the degree possible, through some form of compensation.
Background & Definition Cont’d Restorative Justice may occur in court rooms, communities and other institutional levels such as prisons and non‐governmental organisations involved in the work.
Court Room Restorative Justice In the courtroom, where such a process exists, petty or first‐time offenses, may be referred to restorative justice as a pre‐trial diversion, with charges being dismissed after fulfilment of the restitution agreement. In more serious cases, restorative justice may be part of a sentence that includes prison time or other punishments
Courts
The hierarchy is as follows: Supreme Court High Court – Industrial Relations Court Subordinate Courts Small Claims Courts Local Courts Any other courts as may be establish by the Minister.
Court Annexed Mediation
This is currently prevalent in civil cases only Judge driven process Legal representation available Manned by professional mediators
Plea negotiations and Agreements Act 2010 This is an act that provides for introduction and implementation of plea negotiations and plea agreements in the criminal justice system and for matters connected with, or incidental to thereto. The Act is applicable to the High Court and Subordinate Courts only.
Plea Neg. & Agreements cont’d S. 4, A Public Prosecutor or an accused person may at any time before judgment enter into a plea negotiation for the purpose of reaching an agreement requiring an accused person to: i) make a guilty plea to an offence which is disclosed on the facts on which the charge against the accused person is based; and ii) fulfil the accused person’s other obligations specified in the agreement.
Plea Neg. & Agreements Cont’d A Public Prosecutor may: i) take a course of action consistent with the exercise of the powers to withdraw or discontinue the original charge against the accused person; or ii) accept the plea of the accused person to a lesser offence whether originally included or not, than that charged.
Plea Nog. & Agreements S.8, A Public Prosecutor shall unless there are compelling reasons inform the victim of the substance and reasons for plea agreement and that the victim is entitled to be present when the court considers the plea agreement. Where victim has died or incapacitated, prosecutor shall communicate to immediate family member or authorised representative.
Plea Nog. & Agreements S.10, Court not bound by Plea Agreement except where the non‐acceptance would be contrary to the interest of justice and public interest. The court should ensure that there was no inducement offered to accused person, accused person understood nature, substance and consequence of plea agreement,
Plea Neg. & Agreements That there is a factual basis upon which a plea agreement has been made; Acceptance of a Plea Agreement would not be contrary to the interests of justice and public interest.
Problems with Courtroom processes Court annexed mediation does not extend to criminal matters; Under the Plea Negotiations and Agreements Act the victim is not involved, but the prosecutor and the accused only. The process is not driven by the adjudicator but the adjudicator is involved at a later stage.
Courtroom process problems cont’d The plea agreement may be sealed and remain confidential without the victim knowing the content of the agreement. Lack of awareness of the formal system by the majority of the citizens; Intimidatory nature of the formal system; Legal costs are inhibitive for most of the citizens;
Courtroom process problems cont’d Language and procedure is advanced for most of the citizens; Lack of knowledge of international human rights instruments relevant in the administration of justice by both litigants and adjudicators; Increasing ill public perceptions about the formal system.
Courtroom process problems cont’d Courts are not found in all corners of the country; Judges, magistrates are not enough for the entire population; Long distances to institutions of justices; Lack of infrastructure;
Courtroom process problems cont’d Inadequate resources for defendants to defend themselves; Meagre resources for judiciary; Inadequate remuneration for Magistrates; Lack of lawyers; Lack of transport; Inadequate training for adjudicators and support staff;
Community Restorative Justice • In the community, concerned individuals meet with all affected parties to resolve the matter and restore their relationship. • In most instances the offender approaches the victim’s family through a family representative or a clan leader. • In some cases the two families may resolve the matter or • The hearing may be before village elders; headmen/women; Council of elders at the Chief’s palace or before the Chief himself/herself.
Community Restorative Justice Cont’d • Victims of the offender are invited to participate in the process by meeting with the elders and offender, or by appearing through a surrogate victim. During a meeting, elders discuss with the offender the nature of the offense, impact of the behaviour, and negative consequences. • Victims are given an active role in a dispute and offenders are encouraged to take responsibility for their actions, "to repair the harm they've done‐ by apologizing, returning stolen money”.
Community Restorative Justice Cont’d Then elders discuss a set of actions with the offender, until they reach agreement on the specific actions the offender will take within a given time period to make reparation for the crime. Subsequently, the offender must fulfil the terms of the agreement.
Problems with community process Lack of recognition of customary criminal system; Lack of interaction between customary and formal criminal systems; Lack of uniformity of customs amongst the 73 ethnic groups; Lack of codification of customs and practices;
Problems with community process cont’d
Lack of infrastructure; Lack of training of the adjudicators; Absence of record keeping; Absence of precedents or uniformity in decisions;
Other Institutions Here we look at the Prisons; Legal Aid Board and Non‐governmental organisations involved in the process.
PRISONS ACT AMENDMENT NO. 16 of 2004. S. 114. The Commissioner may, on such terms and conditions as the Parole Board may determine, permit a prisoner who is serving a term of imprisonment of at least two years, within six months of the date the prisoner is due to be released, to be released, to be absent from prison on parole until the expiry of the remainder of the prisoner’s term of imprisonment.
Prisons Act cont’d S. 116A. (1) The Commissioner shall establish an extension services programme for purposes of providing post imprisonment programmes for discharged prisoner and prisoners who are released under compulsory after care orders.
Prisons Act cont’d (2) The Commissioner shall appoint, as extension officers, persons who are professionally qualified in social welfare for the purposes of administering the extension services programme and compulsory after care orders.
Prisons Act cont’d 116B. (1) A prisoner shall not be eligible for selection to an extension services programme unless the prisoner‐ (a) has served a term of imprisonment of at least two years; (b) has proved to be of good conduct and is industrious; and (c) deserves to be settled back into society following the expiry of that prisoner’s term of imprisonment.
Problems with Prison process Power vests in the Commissioner; Victims have no role to play in the process; The community is not involved per se.
Other Institutions: Legal Aid Board & NGOs The Legal Aid and NGOs such as the Legal Resources Foundation that have lawyers can participate in courtroom restorative justice process; However given the limited nature of the courtroom process much can be done outside the courtroom at their offices.
Problems with Legal Aid Board and NGOs
Present in a few areas only; Distances make access inhibitive; Understaffed, particularly lawyers; High turn over of lawyers; Inadequate funding; Lack of transport;
Lobbying/Advocacy There should be court managed restorative criminal justice system as is the case in civil matters, court annexed mediation should therefore be extended to criminal matters; Victims must be involved under the Plea Negotiations and Agreements Act in courtroom restorative justice system, the Act should be amended;
Lobbying/Advocacy Very few of the citizens of Zambia are aware of the formal justice system and how it operates, awareness campaigns for the recognition of the system must be conducted by the government and institutions involved;
Lobbying/Advocacy Restoration and recognition of Traditional Court System and their jurisdiction in criminal matters; Increased infrastructure for enhanced access to justice for both formal and informal systems; Codification of customary law and practices of ethnic groupings;
Lobbying/Advocacy Increased properly skilled human resources and improved remuneration for adjudicators; Independence of judicial and quasi judicial institutions; Increased use of human rights instruments in the criminal justice system.
Strategies Coalition or network building by stakeholders; Engaging traditional leaders; Engaging law makers and advocating for criminal law reform; Conducting radio and television programmes on the subject; Conducting community drama.
Coalition/networking building Issues
Outcomes
Court managed restorative criminal justice system.
The Criminal Procedure Code and the Plea Negotiations and Agreements Act are amended.
Independence of judiciary and quasi judicial institutions.
Judicial Officers are appointed by an independent body.
Coalition/network building Issues
Outcomes
Involvement of victim (s) under in plea negotiation agreements.
Relationship between victim and offender/community restored.
Aware campaign on formal criminal justice system.
Increased number of citizens have access.
Restoration of traditional courts and recognition of their criminal jurisdiction.
Traditional courts and formal system are integrated and there is enhanced access to justice.
Increased infrastructure
Access to justice enhanced.
Coalition/network building Issues
Outcomes
Codification of customary laws and practices.
Laws and practices are certain.
Skilled judicial officers.
Access to justice is enhanced and speedy justice delivery.
Improved remuneration of judicial officers.
Judicial officers’ morale boosted and access to justice is enhanced.
Appointment of judicial officers by independent body.
The judiciary is independent
Coalition/network building Issues
Outcomes
Use of human rights instruments in criminal justice system.
Human rights instruments are ratified and domesticated; regional and international obligations are fulfilled.
Engaging traditional leaders
Traditional leaders are aware of the place of customary criminal justice system and its critical role on access to justice
Coalition/network building Issues
Outcomes
Engaging law makers and lobbying for criminal justice reform.
Laws are amended to enhance access to justice.
Conducting radio and television programmes.
More citizens become aware of the criminal justice system.
Conducting community drama
Communities are aware of the criminal justice system.
Outline of presentation Background and definition of restorative justice; Types of restorative processes and problems they encounter; Courtroom, customary and institutional Lobbying and Advocacy Issues and outcomes
Background and Definition Restorative justice is a process that ensures re‐fixing of a relationship, fix the damage that has been done between offender and victim and prevent further crimes from occurring. Restorative justice puts the emphasis on the wrong done to a person as well as on the wrong done to the community.
Background & Definition Cont’d Restorative Justice recognizes that crime is both a violation of relationships between specific people (Offender(s) and Victim(s)) and an offence against everyone ‐ the state It focuses on the needs of victims and offenders, instead of the need of the community to exact punishment.
Background & Definition Cont’d Victims are given an active role in a dispute and offenders are encouraged to take responsibility for their actions, "to repair the harm they've done‐ by apologizing, returning stolen money, or doing some community service”. It is based on a theory of justice that focuses on crime and wrong doing as acted against the individual or community rather than the state.
Background & Definition Cont’d Restorative Justice can involve a fostering of dialog between the offender and the victim, show the highest rates of victim satisfaction, true accountability by the offender and reduced reoffending.
Background & Definition Cont’d • In criminal cases, victims have an opportunity to express the full impact of the crime upon their lives, to receive answers to any questions about the incident, and to participate in holding the offender accountable for his or her actions. • Offenders can tell their story of why the crime occurred and how it has affected their lives. • Offenders are given an opportunity to make things right with the victim, to the degree possible, through some form of compensation.
Background & Definition Cont’d Restorative Justice may occur in court rooms, communities and other institutional levels such as prisons and non‐governmental organisations involved in the work.
Court Room Restorative Justice In the courtroom, where such a process exists, petty or first‐time offenses, may be referred to restorative justice as a pre‐trial diversion, with charges being dismissed after fulfilment of the restitution agreement. In more serious cases, restorative justice may be part of a sentence that includes prison time or other punishments
Courts
The hierarchy is as follows: Supreme Court High Court – Industrial Relations Court Subordinate Courts Small Claims Courts Local Courts Any other courts as may be establish by the Minister.
Court Annexed Mediation
This is currently prevalent in civil cases only Judge driven process Legal representation available Manned by professional mediators
Plea negotiations and Agreements Act 2010 This is an act that provides for introduction and implementation of plea negotiations and plea agreements in the criminal justice system and for matters connected with, or incidental to thereto. The Act is applicable to the High Court and Subordinate Courts only.
Plea Neg. & Agreements cont’d S. 4, A Public Prosecutor or an accused person may at any time before judgment enter into a plea negotiation for the purpose of reaching an agreement requiring an accused person to: i) make a guilty plea to an offence which is disclosed on the facts on which the charge against the accused person is based; and ii) fulfil the accused person’s other obligations specified in the agreement.
Plea Neg. & Agreements Cont’d A Public Prosecutor may: i) take a course of action consistent with the exercise of the powers to withdraw or discontinue the original charge against the accused person; or ii) accept the plea of the accused person to a lesser offence whether originally included or not, than that charged.
Plea Nog. & Agreements S.8, A Public Prosecutor shall unless there are compelling reasons inform the victim of the substance and reasons for plea agreement and that the victim is entitled to be present when the court considers the plea agreement. Where victim has died or incapacitated, prosecutor shall communicate to immediate family member or authorised representative.
Plea Nog. & Agreements S.10, Court not bound by Plea Agreement except where the non‐acceptance would be contrary to the interest of justice and public interest. The court should ensure that there was no inducement offered to accused person, accused person understood nature, substance and consequence of plea agreement,
Plea Neg. & Agreements That there is a factual basis upon which a plea agreement has been made; Acceptance of a Plea Agreement would not be contrary to the interests of justice and public interest.
Problems with Courtroom processes Court annexed mediation does not extend to criminal matters; Under the Plea Negotiations and Agreements Act the victim is not involved, but the prosecutor and the accused only. The process is not driven by the adjudicator but the adjudicator is involved at a later stage.
Courtroom process problems cont’d The plea agreement may be sealed and remain confidential without the victim knowing the content of the agreement. Lack of awareness of the formal system by the majority of the citizens; Intimidatory nature of the formal system; Legal costs are inhibitive for most of the citizens;
Courtroom process problems cont’d Language and procedure is advanced for most of the citizens; Lack of knowledge of international human rights instruments relevant in the administration of justice by both litigants and adjudicators; Increasing ill public perceptions about the formal system.
Courtroom process problems cont’d Courts are not found in all corners of the country; Judges, magistrates are not enough for the entire population; Long distances to institutions of justices; Lack of infrastructure;
Courtroom process problems cont’d Inadequate resources for defendants to defend themselves; Meagre resources for judiciary; Inadequate remuneration for Magistrates; Lack of lawyers; Lack of transport; Inadequate training for adjudicators and support staff;
Community Restorative Justice • In the community, concerned individuals meet with all affected parties to resolve the matter and restore their relationship. • In most instances the offender approaches the victim’s family through a family representative or a clan leader. • In some cases the two families may resolve the matter or • The hearing may be before village elders; headmen/women; Council of elders at the Chief’s palace or before the Chief himself/herself.
Community Restorative Justice Cont’d • Victims of the offender are invited to participate in the process by meeting with the elders and offender, or by appearing through a surrogate victim. During a meeting, elders discuss with the offender the nature of the offense, impact of the behaviour, and negative consequences. • Victims are given an active role in a dispute and offenders are encouraged to take responsibility for their actions, "to repair the harm they've done‐ by apologizing, returning stolen money”.
Community Restorative Justice Cont’d Then elders discuss a set of actions with the offender, until they reach agreement on the specific actions the offender will take within a given time period to make reparation for the crime. Subsequently, the offender must fulfil the terms of the agreement.
Problems with community process Lack of recognition of customary criminal system; Lack of interaction between customary and formal criminal systems; Lack of uniformity of customs amongst the 73 ethnic groups; Lack of codification of customs and practices;
Problems with community process cont’d
Lack of infrastructure; Lack of training of the adjudicators; Absence of record keeping; Absence of precedents or uniformity in decisions;
Other Institutions Here we look at the Prisons; Legal Aid Board and Non‐governmental organisations involved in the process.
PRISONS ACT AMENDMENT NO. 16 of 2004. S. 114. The Commissioner may, on such terms and conditions as the Parole Board may determine, permit a prisoner who is serving a term of imprisonment of at least two years, within six months of the date the prisoner is due to be released, to be released, to be absent from prison on parole until the expiry of the remainder of the prisoner’s term of imprisonment.
Prisons Act cont’d S. 116A. (1) The Commissioner shall establish an extension services programme for purposes of providing post imprisonment programmes for discharged prisoner and prisoners who are released under compulsory after care orders.
Prisons Act cont’d (2) The Commissioner shall appoint, as extension officers, persons who are professionally qualified in social welfare for the purposes of administering the extension services programme and compulsory after care orders.
Prisons Act cont’d 116B. (1) A prisoner shall not be eligible for selection to an extension services programme unless the prisoner‐ (a) has served a term of imprisonment of at least two years; (b) has proved to be of good conduct and is industrious; and (c) deserves to be settled back into society following the expiry of that prisoner’s term of imprisonment.
Problems with Prison process Power vests in the Commissioner; Victims have no role to play in the process; The community is not involved per se.
Other Institutions: Legal Aid Board & NGOs The Legal Aid and NGOs such as the Legal Resources Foundation that have lawyers can participate in courtroom restorative justice process; However given the limited nature of the courtroom process much can be done outside the courtroom at their offices.
Problems with Legal Aid Board and NGOs
Present in a few areas only; Distances make access inhibitive; Understaffed, particularly lawyers; High turn over of lawyers; Inadequate funding; Lack of transport;
Lobbying/Advocacy There should be court managed restorative criminal justice system as is the case in civil matters, court annexed mediation should therefore be extended to criminal matters; Victims must be involved under the Plea Negotiations and Agreements Act in courtroom restorative justice system, the Act should be amended;
Lobbying/Advocacy Very few of the citizens of Zambia are aware of the formal justice system and how it operates, awareness campaigns for the recognition of the system must be conducted by the government and institutions involved;
Lobbying/Advocacy Restoration and recognition of Traditional Court System and their jurisdiction in criminal matters; Increased infrastructure for enhanced access to justice for both formal and informal systems; Codification of customary law and practices of ethnic groupings;
Lobbying/Advocacy Increased properly skilled human resources and improved remuneration for adjudicators; Independence of judicial and quasi judicial institutions; Increased use of human rights instruments in the criminal justice system.
Strategies Coalition or network building by stakeholders; Engaging traditional leaders; Engaging law makers and advocating for criminal law reform; Conducting radio and television programmes on the subject; Conducting community drama.
Coalition/networking building Issues
Outcomes
Court managed restorative criminal justice system.
The Criminal Procedure Code and the Plea Negotiations and Agreements Act are amended.
Independence of judiciary and quasi judicial institutions.
Judicial Officers are appointed by an independent body.
Coalition/network building Issues
Outcomes
Involvement of victim (s) under in plea negotiation agreements.
Relationship between victim and offender/community restored.
Aware campaign on formal criminal justice system.
Increased number of citizens have access.
Restoration of traditional courts and recognition of their criminal jurisdiction.
Traditional courts and formal system are integrated and there is enhanced access to justice.
Increased infrastructure
Access to justice enhanced.
Coalition/network building Issues
Outcomes
Codification of customary laws and practices.
Laws and practices are certain.
Skilled judicial officers.
Access to justice is enhanced and speedy justice delivery.
Improved remuneration of judicial officers.
Judicial officers’ morale boosted and access to justice is enhanced.
Appointment of judicial officers by independent body.
The judiciary is independent
Coalition/network building Issues
Outcomes
Use of human rights instruments in criminal justice system.
Human rights instruments are ratified and domesticated; regional and international obligations are fulfilled.
Engaging traditional leaders
Traditional leaders are aware of the place of customary criminal justice system and its critical role on access to justice
Coalition/network building Issues
Outcomes
Engaging law makers and lobbying for criminal justice reform.
Laws are amended to enhance access to justice.
Conducting radio and television programmes.
More citizens become aware of the criminal justice system.
Conducting community drama
Communities are aware of the criminal justice system.
