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DOI: 10.5553/TIJRJ.000161

The International Journal of Restorative JusticeAccess_open

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Restorative justice and access to justice: critical reflections of the global North-South divide

Keywords access to justice, global North-South divide, critical restorative justice, development
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Robert Peacock, 'Restorative justice and access to justice: critical reflections of the global North-South divide', (2023) The International Journal of Restorative Justice 191-206

    Within the global North-South divide, there is little reason to assume that any interventions, development programmes or economic reforms can ever fully resolve the underlying causes of many victimological harms that affect the periphery or so-called ‘developing’ countries or regions of the world unless and until they lead to greater freedom, equality, inclusivity, dignity and access to justice. Within a critical decolonising framework, context, accountability, reparations and reconciliation would remain essential humanising components of restorative justice and variability across a range of historical, geo-political, cultural and social settings. To advance the intense humaneness of a universal personhood, a functional imperative would be to remain vigilant and critical of power relations and of the macro- and micro-links between interpersonal victimisation and victimisation in wider society. Localised workings of privilege and power and the hierarchies that inform these relationships remain connected on the colonial-postcolonial continuum to global patterns and consequences of structural subordination and institutional victimisation and require a broader engagement with access to justice, epistemic privilege and the narrow and restrictive aspirations of western law as procedural remedy.

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    • 1 Introduction

      References to the geo-political North-South divide and the re-centring of a postcolonial worldview are considered useful for the purposes of this discussion to reconsider the nature, dynamics and impact of victimisation and access to justice in a more global and possibly more enriching fashion but crucially and foremost, to be more inclusive in orientation beyond the boundaries of the global North. More conventional perspectives view global North-South relationships as mostly geographic in nature with a binary or dualistic framing of poverty, i.e. the marked distinction between rich and poor countries, or rather the more commonly used terminology of the so-called ‘developed’ or the ‘developing’ worlds. The more affluent parts or ‘developed’ world refer to the colonial masters or imperial states of Europe and the settler countries of Northern America, Australia and New Zealand while the ‘poor’ comprises the continents of Asia, Africa, Central and South America and parts of Oceania. About 85% of the global population reside here, indeed often under conditions of extreme poverty (Carrington, Hogg, Scott & Sozzo, 2018). Although we have entered the Anthropocene epoch, the neglect of oceans, marine life and those living on, within or surrounds, remains noticeable in global North-South framings (see for instance the vast Pacific region from Asia to the East Coasts of the Americas).1x Ocean acidification continues to threaten marine environments and ecosystem services and by the year 2030 water scarcity could displace 700 million people with the escalation of micro-level and trans-boundary conflicts (Falkenberg et al., 2020; Peacock, 2021; Human Development Report, 2020). Also, the delineation of borders and regions constitutes much more than a binary cartographic exercise since it has been influenced by history with the powerful often able to self-servingly draw its own contours around economic and geo-political interests together with the subsequent construction of new realities, both in the past and present, but at the expense of the more vulnerable or colonised. The European colonisation or scramble for Africa that was formalised by the Berlin Act of 1885 serves as a good example that established long-lasting relations on the colonial-postcolonial continuum of economic dependency and inequality, reinforcing the ‘underdeveloped’ label.

    • 2 Restorative justice and development

      With Africa as the Cradle of Humankind, it does not surprise that the ancient African restorative philosophy of Ubuntu originated long before the Christian Ten Commandments that have rendered the metaphysical notion of retribution and the theological concepts of expiation and atonement anachronistic and anathematic to the archaic western institution of punishment that remains widespread today – both in the global North and South – despite advances made in our scientific understanding of conflict and problematic situations.
      The African humanist philosophy of restorative justice and practices of Ubuntu refers to a worldview that translates from the traditional isiZulu umunti ngumuntu ngabantu as ‘A person is a person through other persons’ and was prevalent thousands of years ago due to cultural and spiritual beliefs and references to Netchar Maat, an ancient Egyptian deity (circa 2400 BC). In essence, it refers to the affirmation of one’s own humanity, in its infinite variety of contexts and forms, through the humanity shared with others (Peacock, 2019).
      It would thus be misguided though to view Africa and other parts of the global South prior to colonisation as lawless continents in permanent states of disarray.2x See also the inspiration and sophisticated practices restorative justice had drawn from old Polynesian theories of dispute resolution, from Confucian, Buddhist, Hindu, Islamic and pre-Islamic traditions for responding to theft and violence (Braithwaite, 2018). Although colonial tyranny eroded for instance traditional African jurisprudence that had existed since time immemorial, Africans observed rules of law that formed part of the very fabric of local and oral tradition. However, African law differed profoundly from the colonial laws of the European powers.3x African law is not codified customary law but is considered unwritten living law that has been meticulously preserved and transferred via oral tradition since pre-colonial times (Ramose, 2002). In comparison with a western viewpoint that heralds the ancient Mesopotamian code of Ur-Nammu (circa 2100-2050 BC) as a significant early reference point for victims that prescribed, in addition to the imposition of the death penalty, restitution to be paid by the offender to the victim (Kirchhoff, 2010), the origin of an African victimology can be traced to the earlier (circa 2400 BC) key Egyptian and thus African restorative values of Maat as embodied in Ubuntu, namely, truth, justice, propriety, harmony, balance and reciprocity (Peacock, 2019). The purpose of justice in traditional Africa was to restore harmony as quick as possible and involved the transgressor, the aggrieved party and community. Although it was predominantly restorative, punishment was not unknown in traditional African law. However, African law did not seek to create offences or criminals, but rather to restore and maintain equilibrium in communitarian societies. Other than the punitive individual-oriented nature of western concepts of law, the focus here was on group rights, duties, harmony but also shame with the emphasis on the protection of the innocent as a key feature of traditional African law, followed by restitution to the aggrieved person/group and the sense of shame the community accorded to infractions. These ancient virtues that seek to address imbalances and to restore harmonious relationships through collective agreement and a basic respect and compassion for others, stand in stark contrast to the individualistic western legal systems imposed by the colonial rulers on the African continent and elsewhere. But it would be misguided to view western law and criminal justice as its agent, as central to the global South and Africa’s history and seemingly also central to its future.
      However, according to Blaustein, Pino, Fitz-Gibbon and White (2018), many development policies and practices are rooted in the colonial orientation that ‘non-Europeans’ or Indigenous communities and colonial subjects were considered as ‘trapped’ in stifling and primitive traditions and were viewed simply as barriers to ‘progress’. This moral devaluation of colonial subjects was fuelled by the exploitation of natural resources and labour that ultimately amplified inequalities between the colonisers and the colonies as well as within the colonies themselves. Marx (cited in Morrison, 2005: 300-301) noted the dawn of capitalist production was made possible through the exploitation of the peoples and resources in Africa, Asia and the Americas. It was the enslavement and entombment in the mines of the aboriginal populations in the Americas, the beginning of the conquest and looting of the East Indies and the European colonisation of Africa that laid the foundations for capitalist development built on the human rights abuses of the colonised and enslaved. According to the World Inequality Report (2022), after three decades of trade and globalisation, global inequalities remain as pronounced today as they were during the peak of western imperialism.
      Within the global North-South divide, there is little reason to assume that any interventions, development programmes or economic reforms can ever fully resolve the underlying causes of many victimological harms that affect the periphery or so-called ‘developing’ countries unless and until they lead to greater freedom, equality, inclusivity, dignity and access to justice. The proverb ‘time heals all wounds’ remains very questionable in the case of historical wrongs due to a lack of political accountability and the subsequent cyclical nature of abuse of power, crime and victimisation.4x The research of Carrington et al. (2018) shows the impacts of colonisation live in contemporary patterns of armed conflict, organised and transnational crime in settings where state agencies are often too weak, indifferent, or corrupt to provide safety and security for their citizens or, themselves directly complicit in genocidal violence, extrajudicial killings and other systematic human rights abuses. Behind a façade of visibility, the weak state makes itself also more visible by governing the lower classes where individuals within these classes are to a large extent controlled through their minor infractions (street crime) to deflect from state-corporate crime.
      We have also witnessed attempts and initiatives in both the North and the South, seeking to shed light on our violent past, to make financial reparations, to return cultural property and human remains5x Just as slavery was an integral part of the European economy, the removal of cultural objects from colonies was at the heart of the colonisation. In addition to greed, the European mandate to plunder stemmed from the common view and justification that Christian and scientific legacy was immeasurably superior to the ‘barbarous’ customs of others in the colonial enterprise (Chechi, 2023). According to Visconti (2023) the repatriation of cultural objects unlawfully taken from their communities of origin remains however a ‘thorny’ issue. Not only due to the rigidity of legal procedures and instruments that cannot provide adequate redress to the historical depredations of cultural property, theft and wilful destruction, but also as a result of the additional layers of social, political and emotional complexity that relate to claims rooted in past conflicts and/or colonial domination. With deeper issues of access to justice at stake, a comprehensive restorative justice approach is required. or for former colonising countries to express official apologies (Howard-Hassmann, 2016; Rubio-Marín, 2009), but also the invocation of the imported western medicalised view of trauma, disease and healing that may serve chiefly as an internal reproduction of oppression to only obscure the dehumanising structural and institutional violent legacy of colonisation and state crime and subsequently, the root causes of societal distress with diminished state accountability and reconciliation. This premise does not seek to deny the suffering inflicted by gross human rights abuses but rather, to question the extent to which the need for reparations warrant framing within a paradigm of psychopathology. Or, in other words, rather than attempting to ‘psychologise away’ social inequality, state-corporate crime and human rights abuses, a broader framework of access to justice and reconciliation is required to capture the complexities of distress and victimisation not only in the global South but also elsewhere (Peacock, 2020).
      But instead of looking for structural, systemic or restorative solutions, the concept of ‘resilience’ or ‘to bounce back’ (appropriated from the field of engineering) has become a popular catchphrase used by governments, international finance organisations and the NGO sector with reference to the assumed capacity of individuals and communities to deal with the distress resulting from ecological, socio-economical and political disturbances (Cretney, 2014; Peacock, 2021). In other words, ‘we may not be able to fix it’ or ‘we may not be able to stop it’, but we can celebrate the resilience of the communities that continue to get through it. But on continuously asking Indigenous and non-western communities to be resilient in the face of land-grabs, state-corporate crime and ‘ecocide’, the futilities of transgenerational structural and institutional victimisation remain concealed and unabated. Critical scholars (Roth & Kauzlarich, 2014) have demonstrated that political elites uphold their privilege, status and interests by not only defining crimes but also shaping criminal justice responses to it. In the global South, the apartheid regime in South Africa serves as a good example. At the core of the massive violations of human rights lies the need for cheap and a ready supply of labour to ensure the continued exploitation of the country’s great mineral wealth by the white elite (Peacock, 2011).
      With historically constructed socio-economic injustices and inequalities, a shift is required within the discourse and practices of reconciliation with due regard to economic, social and environmental rights and a related push to ameliorate those wrongs by the advantaged and superpowers with critical concerns about political culpability, responsibility and accountability. For some, holism appears to offer a way out of hard dilemmas6x Despite the fact that ‘transitional justice’ has become a widely accepted term, there nevertheless remains confusion about this concept since the word ‘transitional’ in itself is often not readily understood as it signifies transition from one order that is dying to a new order that has not yet been born. A passing or passage from one condition to another is often a precarious journey with uncertainty as to how to respond to the challenges of the new. such as truth versus justice, peace versus justice or transitional justice versus development (Boraine, 2006; Cross, 2021; Leebaw, 2008; Sarmiento, 2021). But by also not reconciling environmental protection with economic expansion and overconsumption, the persistent role of the global North in causing underdevelopment is negated together with its questionable engagement with elitist global markets and exploitation of cheap labour and production from the global South – but also its industrial toxicity with universal consequences, and other social relations that perpetuate inequality and global injustices (Kanu, Ndubisi & Obiagwu, 2021). For instance, access to environmental justice predicates the need for an understanding of the environment not only in material terms, but within an eco-philosophical, restorative and critical Indigenous framework to re-centre a Southern Indigenous ontology, abundant in its cultural, and relational values to ultimately enhance environmental protection and justice for the collective good, beyond the orthodoxy of criminal law architecture or western concepts of ‘development’. Although the Inter-American Court of Human Rights, the African Court of Human Rights and the Colombian Constitutional Court have gradually recognised the scope of the collective rights of Indigenous peoples to self-determination and to land and natural resources, Izquierdo and Viaene (2018) are of the opinion that despite this important progress, the hegemony of human rights remains since it has not yet dealt with the divisive challenges many Indigenous peoples are confronted with in their experiences of the world as non-dual, interrelated and interdependent with no separation between the material, the cultural and the spiritual. Not only human beings are considered sacred but also hills, caves, water, houses, plants and animals have agency.
      The aftermath of the Second World War prompted the international community to consider the impact of development on crime in what were commonly referred to as ‘third world’ or ‘least developed’ countries. All major world leaders are committed to achieve the 17 Sustainable Development Goals (SDG) by 2030 in ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ (United Nations General Assembly, 2015).7x Prior to the coronavirus pandemic, the implementation of the SDGs has been uneven across countries, goals and targets. In Sub-Saharan Africa, less than 50% of the countries were on the way towards meeting the best possible outcome and were off-track on most SDGs (Brookings, 2020; Foresight Africa, 2021; Human Development Report, 2020). Despite data gaps and timelines that are likely to underestimate the decline in SDG performance globally, the global average of the SDG Index score for 2020 has decreased from 2019, a decline driven by increased poverty rates and unemployment following the outbreak of the COVID 19 pandemic (Sustainable Development Goals Report, 2021). There are over 150 targets, of which about 15 are concerned with reducing violent victimisation, including violence against women, traffic fatalities and violence in urban areas by 2030. The targets of reducing the massive incidence of interpersonal violence are set out in SDG 3, 5, 11 and 16. These include targets in SDG 5 for the reduction of violence against women together with the reduction of all forms of violence and related deaths in SGD 16 as well as equal access to justice for all.8x Applying a gendered lens to all the goals contained within the SDGs is essential and commendable to ensure that any progress made is done with the experiences of women in mind (UN Women, 2018). Gender equality is a requisite for eliminating violence against women on structural level but also critical to the elimination of interpersonal violence against women. Regrettably, with reference to gender the SDGs adopted a binary and heteronormative approach for the international community by failing to address also the high levels of violence and discrimination experienced by members of the LGBTI+ community worldwide (Peacock, 2021).
      However, it is widely accepted today that increasing the power of the criminal justice system (under SDG 16 Target 16.3: Rule of Law) can be counter-productive when it comes to addressing the underlying structural causes of crime, inequality and victimisation, thereby also perpetuating the colonial loss of identity among Indigenous peoples. There is also the omnipresent risk that any proactive policing strategy may be used to disproportionately target ethnic minorities and Indigenous communities (Blaustein et al., 2018). See for instance the research of Chris Cunneen (2007) and Harry Blagg (2008) on aboriginal victimisation in Australia, the international crime of apartheid in South Africa (Peacock, 2011) and recent criminal justice events in the United States – thereby resulting in human rights violations that impact henceforth on the legitimacy of the police and criminal justice system – already a particular concern around the importation of alien western institutions of social control into the global South and settler communities.9x See Loïc Wacquant (2009: xviii) who describes the paradox of neoliberal penality where ‘the state stridently reasserts its responsibility, potency, and efficiency in the narrow register of crime management at the very moment when it proclaims and organizes its own impotence on the economic front, thereby revitalizing the twin historical-cum-scholarly myths of the efficient police and the free market’.

    • 3 Decolonising justice

      Restorative justice presents with a shift away from individualism and commodification of resources (including labour) to one of recognising (global) interdependence and valuing of communities and their cultural heritage. However, it remains crucial not to conflate Indigenous justice with restorative justice since Indigenous communities constitute globally a heterogeneous group with over 476 million Indigenous people living in 90 countries across the world and who maintain at least or in part distinct knowledge systems, cultural beliefs and values as well as differences in social-political, legal and economic systems (Cunneen, 2018). Without due regard to such variability and differentiation, the implementation of restorative practices could indeed be understood as another wave of colonisation within the current domain of social control, also securing the hegemony and endorsement of the imported Eurocentric system of justice, rather than the reassertion and recognition of custom-based alternatives (Blagg, 1998; Blagg & Anthony, 2019; Findlay, 2000). Fattah (2006) warns of net-widening of social control when restorative principles are introduced to reform the criminal justice system as a measure to correct its deficits or as a remedy to its failings but with the contradictory punitive philosophy in tact that underscores, permeates and defeats every attempt at criminal justice reform. Despite pronounced cultural differences, it therefore does not surprise that Indigenous peoples in the global South and settler countries experience common difficulties within the imported western criminal justice system in relation to the recognition of their identities, protection of their rights and access to justice when they are commonly further victimised and under-policed as victims and over-policed as offenders (Cunneen, 2007, 2018; Fattah, 2023).
      Scholars in the global North (see for instance Von Hirsch, Roberts, Bottoms, Roach & Schiff, 2003; Walters, 2020) focused much on the tension between restorative and criminal justice as competing paradigms in dealing with conflict. Louk Hulsman’s (1986) health warning on the crucial need to transcend comparative and at times absorbing criminal justice conceptualisations in relation to victimisation and access to justice would also apply here, if not, to risk being caught up in a network of supporting oppositions of the criminal justice model rather than to truly challenge the ideologies of social defence, thereby resulting in more pain and more problematic situations. The need to limit pain has been clearly demonstrated by the pre-Covid research of Groenhuijsen (2019) on the European Union Directive Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime (2012) showing how victim support systems and access to justice fall short for all types of victims among all Member States. Although the EU Directive recognises in specific the potential benefits of restorative justice, the Directive remains also mute on general measures to increase accessibility for all types of cases, free access and the possibility of self-referral (Lauwaert, 2013).
      In the global South, access to justice on the colonial-postcolonial continuum presents furthermore as more complex than the triumph of the informal over the formal or criminal justice versus restorative justice. Here we need to understand access to justice in concert with prevailing historical power relationships and crises of legitimacy. Or differently phrased, all justice systems in postcolonial states need to be decolonised with due recognition of the state and criminal justice as its agent as the greatest barrier to the well-being of all. To demonstrate the continued, pervasive and discriminatory nature of the victimology of, for instance, state hate crime, in Africa only, 32/54 countries (Human Dignity Trust, 2021) criminalise private, consensual sexual activity between adults of the same sex, and in some countries (Sudan, Southern Somalia, Northern Nigeria), the death penalty is imposed for similar deeds or a minimum of 10 years of imprisonment in other. Hardening attitudes are noticeable in countries such as Uganda and Tanzania that prohibits AIDS-related services as ‘promoting’ homosexuality, or rendering it illegal in Nigeria for healthcare providers, family members and acquaintances to be supportive of perceived or actual members of the LGBTI+ community.10x Regarding other regions in the global South, as recently as the year 2018, Section 377 of the Indian Penal Code (inherited from the British) was decriminalised, which made private same-sex relations legal in India.
      State hate crime has been imported and perpetrated in the majority of countries in the Commonwealth, most of them former British colonies. The aforementioned serves as but one example of state crime in the global South, amongst a plethora of other state-sanctioned violations one could refer also to the criminalisation of poverty as a result of the importation of vagrancy laws by the colonial masters, the lamentable crimes of slavery, genocide and ecocide, secondary and repeat victimisation during court proceedings or the violation of the inherent right to human dignity and adequate accommodation in substandard and inhumane prison conditions (Bruce & Artz, 2019; Cunneen, 2007; Sarkin, 2008).11x Unveiling the lack of legitimacy and selective stigmatising nature of criminal justice systems in Latin America, Pallamolla and Achutti (2019) refer to the absence of rationality and internal coherence during the (mal) administration of justice causing the ‘paralysation’ of the justice system and the marginalisation and subsequent victimisation of the most social and economic vulnerable part of the population.
      With reference to the need to remain mindful of the nexus of law and criminal justice with the historical, political, cultural and economic spheres in society – thereby engaging beyond narrow constitutional and legal frameworks – it should be noted that prisons as total institutions were imported together with colonial policing into the global South, central to colonial rule to subjugate and regulate the conduct of the colonised subjects while exploiting both their labour and land but are also fundamental in its continued construction of colonial modernity’s capitalist domination and culture of control. Or what Reiman (2004) refers to as ‘The rich get richer and the poor get prison’. The colonial context adds thus a further dimension as to how we understand power relationships, the lack of legitimacy of the western criminal justice system and connections between the modern political state, the political economy and the globalised nature of gross violations of human rights and access to justice. In decolonising the broader context of justice, Aliverti, Carvalho, Sozzo and Chamberlen (2021) highlight the centrality of ‘crime and criminals’ as nodal points in imperial mentality when ‘crime science’ was utilised as a crucial tool in the production of knowledge about an unknown society from the coloniser’s point of view.
      To challenge what could be perceived as enduring scientific colonialism in the global South, or the dominance of Eurocentric structures and epistemic privilege within global North-South relationships (Refaei, 2020), it would remain crucial to not simply reject non-Indigenous researchers and their canons of work but rather to engage critically with western epistemic privilege and status through the decolonisation of hegemonic constructions of Indigenous victimisation and criminalisation (Cunneen & Rowe, 2015) or to risk simply substituting one sterile hegemonic conception of crime and victimisation or problematic situation with another, thereby resulting in foreclosure or singularity of perspectives and experiences. Cunneen (2018) refers for instance to some similarity between emancipatory Indigenous approaches and the political principles of Marxist, peacemaking, critical race theory and radical feminism of the global North.
      To continue to problematise the enduring role of colonisation and neocolonial institutions in maintaining oppression in the global South that has been marked by the ‘resource curse’ and subsequent multiple deprivations, recurrent indignities, elite politics, sociopolitical instability and state-corporate crime (Peacock, 2019), a critical restorative justice framework would serve well to re-centre Indigenous peoples’ worldviews, experiences, needs and cultural contexts as preferential to the Eurocentric understandings and responses to Indigenous victimisation and criminalisation. Such a framework needs to account for local realities and uniqueness of context while not entirely abandoning global perspectives in a postcolonial globalised world when integrating around a dynamic Indigenous centre to accumulate further traditional knowledge practices situated within a cultural element.
      In South Africa, the cultural values of Ubuntu serve as a good example of a restorative justice anchor point in dealing with the atrocities of state crime. The Interim Constitution of the Republic of South Africa (1993) that prepared the way for the first democratic elections relied on this very willingness of the victims of abuse of power to recognise the humanity of the perpetrators of gross human rights violations. Without their forgiveness, there would have been no future for the new republic and at the dawn of a new democratic order, the epilogue of the Interim Constitution emphasised that the divided society that emerged from apartheid bore a ‘legacy of hatred, fear, guilt and revenge’ highlighting also the ‘need for understanding but not vengeance, a need for reparation but not for retaliation, a need for Ubuntu but not for victimisation’. This was to be achieved through the South African Truth and Reconciliation Commission.

    • 4 Access to justice

      To overcome the persistence of the conceptual failures of ‘equal justice under law’, often taken to mean ‘equal access to justice’ (Ameermia & Mhodi, 2020; Francioni, 2009), we need thus to understand access to justice in both the global North and South as a broader concept than a procedural aspiration or as the rhetoric of an individual’s right to obtain the protection of the law and the availability of legal remedies before a court of law.12x An important consideration here is what do victims want? It has been chronicled in research by (see Fattah, 2019) that victims are not as vindictive as advocated by the punishment model. Their primary concern is redress with realistic rather than moral expectations (viz. an eye for an eye). See also the research Strang and Sherman (2003) with victims reporting that they get far more ‘justice,’ in their own terms, from restorative alternatives than from formal court processes. A primary aim of criminal law should be to restore peace or equilibrium, but the system of punishment administers more pain and hostility rendering future reconciliation virtually impossible. Legal rights are very narrow and restrictive and without the legal status as a victim, those who feel victimised are excluded. See for instance the earlier discussion on the victimisation of the LGBTI+ community or other marginalised or so-called ‘worthless’, ‘undesirable’, ‘disposable’ and devalued victim groupings who are deemed structurally prone and socially expendable. Here one could refer to offenders as victims, or for instance, the street child phenomenon that is commonly viewed as a homogeneous, dispossessed ‘surplus’ population that has fallen through support networks (Fattah, 2019; Peacock & Rosenblatt, 2019). Such partisanship reminds of the work of Nils Christie (1986) who coined the familiar terminology of a so-called ‘ideal’ or ‘pure’ victim that is deemed innocent due to moral and ideological beliefs, and subsequently perceived to be more deserving of empathy, compassion and assistance than the socially ‘expendable’ victim. It is usually those who are marginalised and demonised who suffer the greatest burden of victimisation, but these are also the ones who benefit least from access to justice, services and programmes made available to crime victims and victims of abuse of power. In safeguarding civil rights and liberties, transcending parochialism remains especially critical in the deplorable context of a normative hierarchy of victims where certain human lives are considered more valuable than others: also, with the concomitant introduction of more sanctions, more punishment and thus more victimisation (Fattah, 2019, 2020).
      The underlying values and principles of non-domination and inclusive dialogue of restorative justice (Braithwaite, 2003) add much value to move from the formalistic and largely symbolic legal orientation towards a broader understanding of the concepts of conflict and access to justice.13x See for instance the Zwelethemba model (Froestad & Shearing, 2007) that demonstrates how conflict is firmly embedded in a wider context of often ongoing and long-established patterns of action that may include groupings such as families, neighbours and communities. Within this broader context, the labelling of who is the ‘offender’ and who is the ‘victim’ very often oscillates depending on just when a ‘snap shot’ of events is taken – a ‘victim’ today may well have been an ‘offender’ yesterday, or alternatively, to phrase such homogeneity as the false victim-offender dichotomy (Fattah, 2019). Access to justice needs not only to evolve on and beyond the colonial-postcolonial continuum to account for state crime but to be generally understood as encompassing as possible to allow for self-determination and the attainment and advancement of communal, cultural, socio-economic, environmental, peace and reconciliatory imperatives, amongst others. The inclusive nature in which restorative justice engages with marginalisation and Indigenous rights and values would determine the extent to which it might be considered progressive and innovative in advancing social justice. It is recognised that the poor have unequal access to justice and this undermines the possibility of equality in and between societies (Abregú, 2001; Ameermia & Mhodi, 2020). However, restorative justice practices are not simple and require material resources, expertise and much effort on the part of all role-players in a problematic situation. At the micro- and macro-levels, equal access to justice implies the materialising of rights for all to promote economic and social equality in broader society and requires from us to also think structurally and to understand the world from the margins. To direct our attention to global structures, unequal exchange and inequalities embedded in the global political economy that continue to polarise in the postcolonial world. Marking progress in this regard, on 26 March 2019, the European Parliament adopted a resolution on the ‘Fundamental rights of people of African descent in Europe’, recognising that ‘the racism and discrimination experienced by people of African descent is structural’ and stems from ‘historically repressive structures of colonialism’.14x The European Parliament resolution of 26 March 2019 on the fundamental rights of people of African descent in Europe is available from www.europarl.europa.eu/doceo/document/TA-8-2019-0239_EN.html. This symbolic act serves as a crucial reminder that colonisation was about material resources, and access to justice and restorative justice in particular cannot be accomplished through paradigm changes in ontology, epistemology and axiology alone. We need to understand the world from the margins, class struggles, uneven development and unequal exchange globally with the super-exploitation of labour and raw materials in the periphery.

    • 5 Interconnectedness of global spaces

      The colonial burdens imposed on the global South have increased through neoliberal globalisation of over-indebtedness to financial capitalists, the International Monetary Fund and the World Bank.15x See the cascade of economic crises from the SDG Pulse check under Goal 17 (Global partnership for sustainable development) available from https://sdgpulse.unctad.org/debt-sustainability/. Multiple internal conflicts have emerged, frequently aggravated by proxy wars, the illicit arms trade and violent armed struggles between neighbouring countries, often in the interests of industrialised nations.16x See for instance Britain, the US and France as amongst the large arms producing countries in Bitzinger (2009). But as Walklate and Fitz-Gibbon (2018) have observed, the global world also presents as a dynamic multiplicity. According to Carrington et al. (2018), expropriation and exploitation have left enduring imprints on colonial settler societies, whether they happen to be in the North or the South. By placing that Southern legacy of atrocities in the foreground, the South becomes evident also within the global North through amongst others, the impact and consequences of slavery, racial segregation, extreme poverty, convict leasing and prison labour together with the mass and disproportionate incarceration of racial and political minorities.
      It is in these complex meeting points and abrasions between the global North and South (Walklate & Fitz-Gibbon, 2018) that the restorative justice movement could gain invaluable insights into the nature of our contemporary world order, but also of the conflicted relationship between anti-colonial struggles and a postcolonial re-centring of identity and social justice. Marginalised and neglected spaces often afford opportunities for innovation in justice strategy and for the rethinking of received concepts. Braithwaite (2018) is of the opinion there is much to learn from the way different locales across the global South approach the challenges of conflict and building societies, also highlighting the unrealised potential of transitional justice and the value of dialogue, truth reparation and reconciliation. Or as Fattah (2023) succinctly phrased it, we need to consider whether we should punish, not just to argue about how to punish.
      Finally, the relational values of restorative justice and the universality of humankind allows for a pluralistic humanitarian discourse: in other words, for the affirmation of one’s humanity with others in its infinite variety of context and form. With the African or global South restorative values of Ubuntu, there has been within western phenomenological tradition a similar emphasis on human interconnectedness that has been particularly influenced by the work of Heidegger and referred to as the Mitwelt or the social world we share with others. Likewise, the Mitwelt is deemed together with Umwelt (the environment) and along with Eigenwelt (personhood) as essential structures that determine human experience (Hanks, 2008). The African relational understanding of a shared/mutual identity is set in opposition to the western dictum ‘I think therefore I am’ and as a pathway to advance a shared and interconnected universal personhood, should read as ‘I am because I belong’.

    • 6 Conclusion

      Within a critical decolonising restorative framework, it could therefore be concluded that localised workings of privilege and power and the hierarchies that inform these relationships remain connected to global patterns and consequences of structural subordination and institutional victimisation, also with the very prosecution of victims as offenders by the state and criminal justice as its agent. To humanise the local vernacular, and to advance the intense humaneness of a universal personhood, vigilance and interpretation of the geo-political dimension, power relations and dynamics would remain a functional imperative of a critical restorative justice, and in particular when contesting epistemic privilege and addressing the ‘othering’ of marginalised subjects in theory development and praxis. Presenting thus with implications for state accountability, identity and variability across a range of geographic, historical and social settings as the global economy creates new variations of privilege and status and asymmetries that cut across nations and regions. However, there are still the very poor and the very rich, the powerful and disenfranchised and the core and the periphery.

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    Noten

    • 1 Ocean acidification continues to threaten marine environments and ecosystem services and by the year 2030 water scarcity could displace 700 million people with the escalation of micro-level and trans-boundary conflicts (Falkenberg et al., 2020; Peacock, 2021; Human Development Report, 2020).

    • 2 See also the inspiration and sophisticated practices restorative justice had drawn from old Polynesian theories of dispute resolution, from Confucian, Buddhist, Hindu, Islamic and pre-Islamic traditions for responding to theft and violence (Braithwaite, 2018).

    • 3 African law is not codified customary law but is considered unwritten living law that has been meticulously preserved and transferred via oral tradition since pre-colonial times (Ramose, 2002).

    • 4 The research of Carrington et al. (2018) shows the impacts of colonisation live in contemporary patterns of armed conflict, organised and transnational crime in settings where state agencies are often too weak, indifferent, or corrupt to provide safety and security for their citizens or, themselves directly complicit in genocidal violence, extrajudicial killings and other systematic human rights abuses. Behind a façade of visibility, the weak state makes itself also more visible by governing the lower classes where individuals within these classes are to a large extent controlled through their minor infractions (street crime) to deflect from state-corporate crime.

    • 5 Just as slavery was an integral part of the European economy, the removal of cultural objects from colonies was at the heart of the colonisation. In addition to greed, the European mandate to plunder stemmed from the common view and justification that Christian and scientific legacy was immeasurably superior to the ‘barbarous’ customs of others in the colonial enterprise (Chechi, 2023). According to Visconti (2023) the repatriation of cultural objects unlawfully taken from their communities of origin remains however a ‘thorny’ issue. Not only due to the rigidity of legal procedures and instruments that cannot provide adequate redress to the historical depredations of cultural property, theft and wilful destruction, but also as a result of the additional layers of social, political and emotional complexity that relate to claims rooted in past conflicts and/or colonial domination. With deeper issues of access to justice at stake, a comprehensive restorative justice approach is required.

    • 6 Despite the fact that ‘transitional justice’ has become a widely accepted term, there nevertheless remains confusion about this concept since the word ‘transitional’ in itself is often not readily understood as it signifies transition from one order that is dying to a new order that has not yet been born. A passing or passage from one condition to another is often a precarious journey with uncertainty as to how to respond to the challenges of the new.

    • 7 Prior to the coronavirus pandemic, the implementation of the SDGs has been uneven across countries, goals and targets. In Sub-Saharan Africa, less than 50% of the countries were on the way towards meeting the best possible outcome and were off-track on most SDGs (Brookings, 2020; Foresight Africa, 2021; Human Development Report, 2020). Despite data gaps and timelines that are likely to underestimate the decline in SDG performance globally, the global average of the SDG Index score for 2020 has decreased from 2019, a decline driven by increased poverty rates and unemployment following the outbreak of the COVID 19 pandemic (Sustainable Development Goals Report, 2021).

    • 8 Applying a gendered lens to all the goals contained within the SDGs is essential and commendable to ensure that any progress made is done with the experiences of women in mind (UN Women, 2018). Gender equality is a requisite for eliminating violence against women on structural level but also critical to the elimination of interpersonal violence against women. Regrettably, with reference to gender the SDGs adopted a binary and heteronormative approach for the international community by failing to address also the high levels of violence and discrimination experienced by members of the LGBTI+ community worldwide (Peacock, 2021).

    • 9 See Loïc Wacquant (2009: xviii) who describes the paradox of neoliberal penality where ‘the state stridently reasserts its responsibility, potency, and efficiency in the narrow register of crime management at the very moment when it proclaims and organizes its own impotence on the economic front, thereby revitalizing the twin historical-cum-scholarly myths of the efficient police and the free market’.

    • 10 Regarding other regions in the global South, as recently as the year 2018, Section 377 of the Indian Penal Code (inherited from the British) was decriminalised, which made private same-sex relations legal in India.

    • 11 Unveiling the lack of legitimacy and selective stigmatising nature of criminal justice systems in Latin America, Pallamolla and Achutti (2019) refer to the absence of rationality and internal coherence during the (mal) administration of justice causing the ‘paralysation’ of the justice system and the marginalisation and subsequent victimisation of the most social and economic vulnerable part of the population.

    • 12 An important consideration here is what do victims want? It has been chronicled in research by (see Fattah, 2019) that victims are not as vindictive as advocated by the punishment model. Their primary concern is redress with realistic rather than moral expectations (viz. an eye for an eye). See also the research Strang and Sherman (2003) with victims reporting that they get far more ‘justice,’ in their own terms, from restorative alternatives than from formal court processes. A primary aim of criminal law should be to restore peace or equilibrium, but the system of punishment administers more pain and hostility rendering future reconciliation virtually impossible.

    • 13 See for instance the Zwelethemba model (Froestad & Shearing, 2007) that demonstrates how conflict is firmly embedded in a wider context of often ongoing and long-established patterns of action that may include groupings such as families, neighbours and communities. Within this broader context, the labelling of who is the ‘offender’ and who is the ‘victim’ very often oscillates depending on just when a ‘snap shot’ of events is taken – a ‘victim’ today may well have been an ‘offender’ yesterday, or alternatively, to phrase such homogeneity as the false victim-offender dichotomy (Fattah, 2019).

    • 14 The European Parliament resolution of 26 March 2019 on the fundamental rights of people of African descent in Europe is available from www.europarl.europa.eu/doceo/document/TA-8-2019-0239_EN.html.

    • 15 See the cascade of economic crises from the SDG Pulse check under Goal 17 (Global partnership for sustainable development) available from https://sdgpulse.unctad.org/debt-sustainability/.

    • 16 See for instance Britain, the US and France as amongst the large arms producing countries in Bitzinger (2009).


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