3. Reintegration of Restorative Justice an Exposition of Parallel Criminal Justice Systems; Joesph M. Chaggama
- Last Updated on Tuesday, 18 September 2012 08:09
- Joseph M. Chaggama
Univ. of Hull, UK.
Restorative justice theory has five theoretical foundations that it uses: lay judges, as it is community-based and victim-centred; reintegrates offenders; is the opposite of retributive justice; uses mediation and restitution; restorative justice advocates’ aim for restorative justice to become a fully fledged justice system. The current restorative justice models fail to demonstrate this relationship between theory and practice. This paper examines the ward tribunals’ justice system, a system that runs parallel with the criminal justice system in Tanzania. This model presents theory and practice that will realize a restorative justice system.
This paper addresses a question ‘is the ward tribunals’ criminal justice system an ideal model for a restorative justice system?’ There is a philosophical and methodological gap on how to conceptualize the nature of an ideal restorative justice system. I will present a restorative justice overview in order to introduce the context of this paper that expresses the need to theorize the nature of a future restorative justice system. I will then recalibrate the principle tenet of ‘neighbourhood courts’ in Nils Christie’s article ‘Conflict as Property’ (1977), albeit briefly as a microcosm for theorizing restorative justice system. The paper focuses in the Ward Tribunal’s Act, 1985, (Chapter of Law (Cap.) 206, Revised Edition (R.E.) 2002) the abbreviated words hereafter apply. The paper is a critically evaluation of different restorative justice theoretical propositions, particularly those that have conceptually viewed the future of restorative justice as ‘parallel criminal justice systems. Thus, the objective of this paper is to examine restorative justice design suited for integration with more conventional forms of state justice. Last, but by no means the least, a conclusion reflecting the discussion will be drawn.
Restorative justice: An overview
The origin of restorative justice and its definition are not yet settled, and the contentions seem to continue, especially when one considers the future of a restorative justice system. Bazemore and Umbreit (2003) suggest that the movement should be credited to Barnett (1977) who was the first person to postulate a theory on this subject. Howard Zehr (2005) indicates that the movement was started in 1974 in Canada by the Mennonite Church as a ‘Christian response to crime’. Van Ness and Strong (2010: 22) credit the origin of restorative justice to Albert Eglash who first used the term in his book published in 1955 in Germany entitled ‘The biblical doctrine of Justice and Law’. However, Van Ness and Strong (2010: 24) also consider Howard Zehr to be the ‘grandfather’ of restorative justice. John Braithwaite (2003b) refuses to accept that the current restorative justice movement began earlier than the 1990s, in that had it being the case he could have named his (1989) ‘reintegrative shaming theory, restorative justice shaming’. From such a confused account of the roots of restorative justice, it is hardly surprising that the various models or programmes that operate under the rubric of restorative justice also have divergent practices.
In its philosophical conception, it is provided that restorative justice is as old as human history (Braithwaite, 1999; Zehr, 2002). (Johnstone, 2002: 36) argues that ‘restorative justice survived as the routine response to ‘crime’ only in… distant simple societies’. Daly (2002), however, is unconvinced that the ancient ways of doing justice were restorative.
Having highlighted the question of origin, I am bound to delimit the scope of this study. The ward Tribunals Act, 1985 (Cap 206, RE 2002) provides for both civil and criminal jurisdiction. This paper examines the criminal jurisdiction of this law in order to customize it with restorative justice. The study is an examination of the Ward Tribunals’ criminal justice system which its legal framework is the theoretical foundations for Nils Christie’s conception of a restorative justice system. Before we proceed, first, I will define my ontological position as a subjectivist in order to participate in this research and I will highlight my method of acquiring and processing data from an interpretivist epistemological position. The reason for this is to make it clear to the reader the contribution that this paper is making to this field of study.
I am aware that this paper is particularly contentious, not least because of the aforementioned social scientific method of subjectivism in the field of law. Although I am a theologian from Christian perspectives, I have decided to be methodologically agnostic so that postmodernism and post-structuralism critical theories may shape this research in socio-legal studies. Like feminism, the line of inquiry I have taken is similar to Miles’ (2007:664) argument that, ‘the postulate of value-free research, of “objectivity”, neutrality, and indifference of researcher vis-à-vis the research objects has to be replaced by consciously taking sides for the oppressed’. It is clear that some poor countries justice systems and their reforms, as is the case in Tanzania, have been oppressed through research works that have no affinity with human research subjects. For instance, Umbreit and Armour (2010: 282) suggest that restorative justice’s remaining task is how to ‘export’ its practices. The question is, where to? On that note, I have rejected Emile Durkheim’s (1938:31; in Bryman (2008:24) positivistic epistemological argument that ‘preconceptions must be eradicated’ when researching social facts. The rejection of using objectivist ontology and its inherent positivistic epistemology is supported by Phillips and Pugh’s (1994:15) argument that a researcher makes an assumption, or hypothesis, that needs to be tested through a scientific method which is called ‘hypothetico-deductive’. For this reason, recalibration of Nils Christie article ‘Conflicts as Property’ (1977) is significant in that its theoretical basis was conceived in Tanzania. Furthermore, (Braithwaite, 1999:5) commends Christie’s article as ‘the most influential text of the restorative justice tradition’.
Context of this paper
Nils Christie (1977) conceived a restorative justice system that is contrasted with the criminal justice system through the de-professionalisation of justice process. Howard Zehr (1990) agreed that restorative justice is the opposite of retributive justice, itself being the end product of the criminal justice system. The definition for criminal justice is, from a criminological point of view in the Sage Dictionary of Criminology (2006: 93-4), ‘[T]he process through which the state responds to behaviour that it deems unacceptable’. As a system of justice, it begins with the commission of an offence that leads to the arrest of an offender and takes him or her ‘through a series of stages: charge; prosecution; trial; sentence; appeal; punishment’ (Ibid). The legal definition of criminal justice from an online source (legal-dictionary, 2012) defines it in a more appropriate manner, that criminal justice is ‘a generic term for the procedure by which criminal conduct is investigated, arrests made, evidence gathered, charges brought, defences raised, trials conducted, sentences rendered, and punishment carried out’. On the other hand, restorative justice does not have a unitary acceptable definition that matches its rival’s definition in that it lacks a system. It is claimed that: ‘...there is no fully elaborated system of restorative justice/community justice...not only in the sense that no jurisdiction has fully embraced restorative/community values and practices but also in the sense that no one has clearly articulated how such a system might work’ (Daniel Van Ness, 2002: 131). Similarly, Braithwaite, (2003: 3) argues that ‘there is no...ideal restorative justice system...’ in spite of the fact that there are many restorative justice models. For instance, Bazemore and Umbreit (2003) discussed four models; Zervnova (2007) refers to seven models, while Paul McCold’s Venn diagram, as used in Bazemore and Elis (2007), indicates that there are more than ten different restorative justice models. Even the aforementioned lists of restorative justice models are not exhaustive. Nonetheless, it is argued that restorative justice systems ‘specifically, seek to replace our existing highly professionalized systems of punitive justice and control…with community-based reparative justice and moralizing social control’ (Johnstone and Van Ness, 2007: 5).
The lack of a systemic model, or an ideal model, for delivering restorative justice have attracted the attention of academics in law schools and criminology schools, and policymakers, as well as practitioners in criminal justice systems who want to know what sort of a system restorative justice is going to be. Like other academic works in theorizing about the future of the restorative justice system, this paper is reliant upon the theorists and while appreciating their work, there is still a gap wide enough to pave way for this paper.
The gap is located in the aforementioned restorative justice models, in that even those models like, Victim-Offender Mediation or Sentencing Circles or Family Group Conferencing that are considered embracing core restorative justice values, still practice restorative justice in collaboration with the criminal justice system in its various stages. During its eleventh session, held in Vienna between 15 and 26 April 2002, the members of the UN Economic and Social Council discussed the ‘reform of the criminal justice system’ by endorsing the use of restorative justice. They stated that a ‘restorative justice programme may be used at any stage of the criminal justice system, subject to national law’.1 Umbreit and Armour (2010: 11) indicate that the American Bar Association (ABA) interpreted restorative justice as a strategy endorsed in 1994 for use in US criminal justice. Von Hirsch, Ashworth and Shearing (2003: 24), see such lack of clarity of restorative goals which must be different from conventional criminal justice system goals as ‘aspirational’ [italics in original].
This gap is evident when considering restorative justices’ theoretical foundations. For example, Daly (2002: 33-35) argues that, ‘we should stop comparing “retributive justice” and “restorative justice” in oppositional terms’ [emphasis in original]. Further, she argues that ‘such strong oppositional contrasts cannot be sustained empirically’. Similarly, sympathetic critic, Joanna Shapland (2003: 203), argues that if restorative justice continues dealing with ‘offending’...[I]t can either decide to exist within criminal justice or repudiate it and be a parallel justice system...’ Similarly, Zernova (2007: 138), posits that ‘Restorative justice cannot be an ‘alternative’ to the state justice system, and at the same time operate either within the system or as an extension, bounded by criminal law…’. Gwen Robinson (2011) clearly indicates that restorative justice models and their practices need to be separated from the criminal justice system. I agree with these views, in that they provide a theoretical gap that justifies my theoretical frameworks on how to develop restorative justice systems as a parallel of criminal justice systems. Howard Zehr (1990) suggested the idea of parallel criminal justice system in his conception of restorative justice, as a different justice paradigm following a Japanese model. Zehr also suggested this as a way of achieving civilization in criminal law. This is because he had broadened the definition of crime from, a violation of law, to a violation of people and relationships. Similarly, Gerry Johnstone suggested that criminal law could be civilized and have ‘parallel tracks’ (, 2002: 164-5). Some examples of parallel justice systems proposed in restorative justice systems are associated with post conflict societies.
For instance, the Rwandan genocide of 1994 led to International Court Tribunals for Rwanda (ICTR) situated in Arusha, Tanzania, to help the Rwandan Justice system to process the perpetrators of genocide. The process proved slow for the Rwandan justice system that paved way for the Gacaca courts (Roberts, 2003)2. Similarly the post apartheid South African Truth and Reconciliation Commission (TRC) opened the door for parallel justice systems, where the ‘ubuntu’ concept linked to ‘forgiveness’ asked for constitutional provision to be provided for the oppressors and ask for them to be forgiven rather than be retributively processed in the criminal justice system (Skelton, 2007)3. Similarly, Anna Eriksson (2009) recently completed research by looking at two restorative justice programmes, the Northern Ireland Community Restorative Justice (NICRJ) and the Northern Ireland Alternatives (NIA). However, this paper is particularly concerned with the theoretical conception of a parallel criminal justice system rather than parallel justice system. The difference lies with the use of criminal justice agencies to investigate, bring the offender to either formal or informal justice apparatus. In this paper the term parallel criminal justice system refers to the kind of ‘neighbourhood courts’, where the victim, or someone on his or her behalf, has the choice of where to report the offence in the first place, either to the conventional criminal justice or to the restorative criminal justice.
(Re) thinking of restorative justice as Parallel criminal Justice System
In regard with the parallel criminal justice rival theories, this paper is delimited to John Braithwaite (2003a) and James Dignan, (2003). The choice of Braithwaite is influenced by Anthony Bottoms (2003: 79) whose comments regarding Braithwaite’s responses to thinking about restorative justice systems, argues that Braithwaite is a ‘master of aphorism’, I agree with this. The choice of James Dignan is his own model of parallel criminal justice which considered Braithwaite’s conception of a future restorative justice system as parallel. Bottoms (ibid) provides a dictionary meaning of ‘aphorism’ from Longman (1984) that aphorismic a concise pithy saying that expresses a truth’. I will add the Oxford Advanced Genie (2002) definition that, ‘aphorism’ is ‘a short phrase that says something true or wise’. There is wisdom in Bottoms choice of analysing Braithwaite’s two arguments; these are summarized in direct quotes from Bottoms:
1. That restorative justice was a dominant response to crime ‘throughout most of human history’.
2. That restorative justice ‘has to be about restoring victims, restoring offenders, and communities’. This has led this paper to examine Braithwaite’s conception of the future restorative justice system through his methodology called ‘a theory of transition’ (Braithwaite, 2003: 4).
Braithwaite argues that any ‘radical transformation’ has to come from ‘south and east’ (2003: 16). Braithwaite’s argument is that radical restorative justice changes would not come from the ‘Northern’jurisprudence where various criminal justice reform movements emerged in the 1990s including restorative justice. By ‘south’ Braithwaite meant the Constitution of South African Republic and its provisions that were used to develop restorative justice programmes that paved the way to Truth Reconciliation commissions and the Zwelethemba programmes, just to mention but a few. Based on his previous research in Japan (he is not limited to it but includes, ‘the ‘east’), Braithwaite proposes two approaches, he called ‘explanatory theory’ and ‘normative theory’.
Braithwaite argues that the contextual application of a naturally arranged set of societal ‘propositions’ and the way the world ‘ought to be’, when these values interact with one another it creates a moral control mechanism that will make the future restorative justice system go beyond reforming criminal justice and solve other ‘injustices’ in the world. However, Braithwaite seeks for a restorative justice system that when dealing with criminal offences (criminal jurisdiction of that system) uses the restorative justice process until such a time when the offender is irredeemable by this system, he, or she, can appeal to the criminal justice system. Braithwaite believes that such a restorative justice system must have ‘appealability’ as one of the core restorative values (Braithwaite 2003:16). In other words, Braithwaite is envisaging a restorative justice system that does not replace the criminal justice system. That it is to say, Braithwaite thinks of a parallel criminal justice system, so to speak. James Dignan (2003: 145-147) designated Braithwaite’s model as an ‘integrated non-systematic model’.
It is important that this paper delves further into Braithwaite’s conception of the future restorative justice system in the way analysed above. In the current restorative justice models, the role of the criminal justice agencies are crucial, in that restorative processes begin after a certain anomaly is identified by the criminal justice agencies as a violation of written norms, otherwise called law. The police role for instance, is significant in arresting the offender, lay charge on the offenders and present the offender in court of law for prosecution. Braithwaite is implicit in acknowledging the place of conventional criminal justice as a rival system rather than a complementary system, as is the case in the current restorative justice practices. For him, this is the reason why ‘south and east’ seem to be a solution for an ideal future restorative justice system. This paper agrees with the proceeded view in that there is a gap that begs for harmonization of restorative justice theory and practice. Like Braithwaite in the above discussion, Dignan (2003: 147) proposes a theory he called a ‘replacement discourse’. By this he means a method in which the restorative justice ‘system’ is used only when the victim and offender voluntarily choose to attend ‘informal restorative justice process and for a court to intervene where free choice of restorative justice option was not taken’. This model of enforcement is often envisaged from the start of the restorative process but is not used as a first option. In this model, replacement discourse will stumble in ‘net widening’ and limit the opportunity for restorative justice to be a fully fledged restorative justice system.
This study was developed and based on the same argument presented above, but with the recalibration of Nils Christie’s article ‘Conflicts and Property’ (1977) and examine its principle tenet, that the ‘neighbourhood courts’ with three key motifs that are community-based, victim-centred and presided over by lay-judges, in order to address this papers original contribution to theoretical conception of an ideal restorative justice system. In order to do this, this paper turns to Tanzania legal and justice history in an attempt to provide for what Johnstone and Van Ness (2007: 16) called ‘alternative conceptions of restorative justice’ [italics in original].
The Ward Tribunals: Nearly a Century of Parallel criminal Justice Systems
This section deals with the theoretical conception of parallel criminal justice systems in the light of Tanzanian Ward Tribunals Act, 1985 (Cap 206 RE 2002). This law falls under customary laws, one of the five sources of the laws of Tanzania.4 The customary laws in pre-colonial Tanzanian societies handled both civil and criminal matters. In the current Tanzanian legal system, customary law is associated with the Civil Procedures Act, (Cap 33 RE, 2002). However, the Ward Tribunals Act, 1985 (Cap 206 RE, 2002) that establishes a parallel justice system has both civil and criminal jurisdiction. This paper is concerned with the tribunals’ criminal jurisdiction. Taking in historical context, customary laws functioned as broadly categorized ‘centralized and non-centralized’ (Judiciary of Tanzania).5
On the one hand, the centralized types of system were applied in societies with chiefs, who played both the role of adjudicator and that of governor. For instance, the centralized indigenous justice systems, such as those organized by the Sukuma ethnic group, required three courts. Hans Cory (1954: 8) argues that ‘three courts of law existed before the arrival of the European: the court of the Banamhala–Village elders, the court of banangwa —headmen and the court of Ntemi--chief’. Further, it is emphasized that the three different courts did not represent a hierarchy, as in modern appellate systems. The chief ‘was reluctant’ to deal with cases that had already been dealt with by other courts. It is clear, however, that the ‘chief’s court was de facto a criminal court’. The chief’s reluctance to retry cases that were already decided by the lower court was particularly in reference to respect for the lower courts decision. In some other cases however, appeals were necessary. James Read describes the indigenous justice in these word: ‘...the ancestors of modern Tanzanians were addicted to appeals: there is evidence that in the indigenous legal systems of East Africa few disputes were finally decided until they had passed through several ascending stages of authority...’6
On the other hand, in the non-centralized systems the entire community took part in the adjudication of disputes. However, in neither system was there any formalization of adjudication procedure. These two systems were restructured by the Native Courts Ordinance, (1921, 1923) and the doctrine of the ‘indirect rule’ gave impetus to ratify these laws to the Native Authority Ordinance, 1926. In other words, the doctrine of ‘indirect rule’ allowed the indigenous courts to operate like magistrates courts, with both civil and criminal jurisdictions for African subjects under the chief’s jurisdiction. The appellant who was not satisfied with the native court’s decision had a right to appeal to the third class magistrates’ courts and the final appellate court in the country was the High Court of Tanzania, established under the Tanganyika Order in Council, 1920.
As descriptively outlined in the above, Morris and Read (1972: 42) argue that ‘indirect rule’, which allowed plural justice, was not only meant to help the ‘indigenous preserving their methods of administration, social control and prevention of crime, and punish the offenders using customary procedures’, but also served the imperial British colonial administration money, aiming at ‘minimum financial commitment’. This paper, while it seeks to argue the need to develop a restorative justice system, it also views restorative justice as a sustainable justice for poor countries like Tanzania in particular and generally for other common law jurisdictions south of the Sahara.
This synthesized legal doctrines between customary courts as part of local government authority and the magistrates courts’ as part of judiciary, the clear link for parallel criminal justice system is established. Although the Customary courts were abolished in 1963, the Arusha declaration of 1967 brought different ethnic groups together from scattered community to ‘communal villages’, as literally translated from Swahili ‘vijiji vya ujama. As a political and economic ideology, Ujamaa is idiomatically translated family hood or brotherhood (Skelton and Sekhonyane, (2007: 592).7
The Arbitration Tribunals Regulation (1969) which under its statutory mandate it convened in the ‘house of assembly’ to hear a civil case proceeding (from Christie to the author, 2011)8. At these native courts, proceedings are open to the public like a system that has survived for nearly a century. This is the reason Christie had an opportunity to attend, not as an overt researcher, but as an alien member of the community. If I may use Bottoms term ‘aphorism’ he applied to analyse Braithwaite’s claims above, may have similar meaning to the data presented in this paper regarding misapprehension source of Christie’s‘neighbourhood court’ (Christie, 1977: 10). That is to say, the Arbitration Tribunals Regulation 1969, was in force until its annulment in 1985 in favour of The Ward Tribunals Act, 1985 (Cap 206 RE 2002) as provided in section 30 of this law. This paper now turns to examine the current ward tribunals’ justice system. Is this model an ideal model for a restorative justice system?
Composition of the Ward Tribunals
Like the aforementioned customary courts the chiefs’ powers were limited to a geographical area. The Ward Tribunals are also limited following the same patter since they are an aggregate that collectively make a system of justice. 9 In section 3(1) ward tribunals are established in every ward in Tanzania. Christie (2003) theorized the nature of a restorative justice system that it has to be ‘a lay-judge oriented’ where it is the ‘court of equals’. This is very similar to the ward tribunals composition where in section 4(1)(a) it provides that ‘every tribunal shall consist of ‘not less than four nor more than eight other members elected by the Ward Committee from amongst a list of names of persons resident in the ward’. The elected chair of the tribunal is elected for three years by the tribunals’ committee. It echoes what Christie considers as a significant part, in that the judges in the future restorative justice system have no need to be in the office until they retire. The tenure for the lay judge applies to the assessors, called the ward committee, except for the ward secretary whose election comes from the local government authority (section 6).
The qualification of the members of the tribunals is provided in section 5 as follows:
(1) No person shall be entitled to be nominated as a member of a Tribunal if he is–
(i) a member of the National Assembly;
(ii) a member of a village council or a Ward Committee;
(iii) a civil servant;
(iv) a legally qualified person or any person who is employed in the Judiciary;
(v) a person under the apparent age of eighteen years;
(vi) a mentally unfit person;
(vii) a person who has previously been convicted of a criminal offence involving moral turpitude; or
(viii) a person who is not a citizen of the United Republic of Tanzania.
(2) No person shall be recommended as a Secretary of a Tribunal unless he is, in the opinion of the Ward Committee, sufficiently literate and educated, and capable of satisfactorily discharging the duties of Secretary.
Although Christie (1977: 2) saw the three party secretaries as very inactive and ‘obviously ignorant of village matters’, the reason was the fact that Christie was an outsider. This law quoted above is evidence that their ward secretary, that were then the party secretaries, is a high office appointed by an administrative executive of the tribunal to covey the local government policies, which includes a Justice of peace.
The ward secretary therefore must be capable of reading and writing in the national language Swahili for the sake of keeping all tribunals records.
Jurisdiction of the Ward Tribunals
Section 8(1) provides for the purpose of this restorative justice model that ‘[T]he primary function of each Tribunal shall be to secure peace and harmony in the area for which it is established by mediating and endeavouring to obtain just and amicable settlement of disputes’, for both civil and criminal matters. The term ‘mediation’ is defined under the ‘Independency of Judiciary’ in dispensing ‘criminal and civil justice by the United Republic of Tanzania Constitution (URTC), 1977 (Cap. 2 R.E. 2002), article 107A(2)(d) which is to‘ kukuza na kuendeleza usuluhishi baina ya wanaohusika katika migogoro’ literally translated to endeavouring to promote mediation among the parties in conflict’. In other words, the ward tribunals’ proceedings are not regulated, but still the proceeding follows the URTC, which is the guarantor of constraints and limits of the tribunals’ power to safe guard human rights of the offender and victim stipulate in the bills of rights article 14-28 of the URTC. Braithwaite (2003: 8-9) has it that restorative justice has ‘constraining values’ which include the aforementioned bills of rights, he called ‘respect for the fundamental human rights’ as provided the United Nations, Universal Declaration of Human Rights (UDHR).
Proceedings of the Ward Tribunals
Unlike most restorative justice models and programmes that are conditioned and almost regulated by the criminal justice system (Shapland, 2003), any one tribunal regulates its own procedure and no rule of evidence is applicable to the tribunals (Section 15). This argument is fundamental to Christie’s conception of neighbourhood courts particularly with reference to community based and victim-centred support. Braithwaite added reintegration of ‘victims, offenders and the communities’. Let us reiterate the question we are attempting to answer, is the ward tribunals’ criminal justice system an ideal model for a restorative justice system? The question is not limited to examine the ward tribunal’s practices, or its legal framework, without evaluating some other restorative justice models frameworks. For instance, Family Group Conferences, one of the three most respected restorative justice models, operates under the social welfare (Zernova, 2007). It is important to know that under any common law jurisdiction, the local government authority controls the welfare system. In that sense it is possible to adopt the Tanzanian structure and export it to other local government authorities either in New Zealand, Australia, or in England and Wales’s local governments.
The Tribunals Decisions and Orders
The ward Tribunals becomes a criminal justice system in that the victim, or the offender, has a choice where to first report his or her complaint. In the ward tribunals the offences are reported first to the ten cell leader, then to the village chair or secretary, then to the ward tribunal as an appellate tribunal. The tribunal is supposed to have what the lawyers call the ‘appellate jurisdiction’ over decisions made by ten cell leader of village chair. Equally important, the ward tribunal has ‘original jurisdiction’.10 The victim has a choice between the ward tribunal and the primary courts (courts of first instance), district magistrates’ courts, or even the resident magistrates’ courts, which are only found in town centres. Furthermore, the primary courts have ‘revisional jurisdiction’11 to examine the tribunal’s proceedings and outcomes, whether or not they were in harmony with other laws of Tanzania.
There are over 1100 primary courts in Tanzania. That is to say, the choice for where to take the case is an option available to the victim. When the offence is reported the ward secretary then reduces the complaints into written statements for the ward tribunal’s records. This statement is filled and the secretary sends out summons for the offender(s) to attend the hearing. The whole community is invited to attend and whosoever feels that they have a stake in the case. The reason for this is that the tribunals are open courts (Section 14). This is similar to what Marshall (2003) argues, that the stakeholders ‘come together to resolve collectively how to deal with the aftermath of the offence’. However, the proceedings in any Tribunal will be governed by the principles of justice, that is to say, the Tribunal shall allow the offender and the victim to prosecute their own case and reach conclusions after it has given an equal opportunity to each party to explain their part of the story and gather evidence from witnesses following the principle of ‘natural justice’.
There are two main legal reasons for keeping the tribunals’ proceedings records: One, if the victim or offender chooses to appeal to the conventional criminal justice system. The tribunal’s appeals lay to the primary court which is closer for the appellant to reach by foot. Two, the tribunals have power to imprison the offender. There is a restorative justice value called ‘respectful listening’, I may also add the ‘respectful attending of the hearing’. The tribunal can imprison a person, or offender, who denies the statutory mandate that summons the offender into its proceedings.
Furthermore, ‘at the conclusion of the proceedings the Tribunal may order that–
(i) the party at fault apologise to the other party;
(ii) a person be censured or admonished at a meeting of the Village Assembly or Ward meeting;
(iii) the party at fault pay a specified fine not exceeding a certain amount prescribed by the appropriate or other legislative authority;
(iv) one party pay back what is due to the other party;
(v) the defaulting party do some specific community work;
(vi) the defaulting party pay compensation;
(vii) the defaulting party carry out any other sanction acceptable in the village or ward concerned; or
(viii) the parties perform any customary act or acts which signify reconciliation.
The Penal Code (Cap. 16 R.E., 2002) has it that an offender who is armed in public is, according to section 84, committing an offence and is fined 800 Tanzanian Shillings, this is equivalent to fifty one pence of US dollar, as punishment. But if they refuse to pay, he, or she, is imprisoned for two years, whereby the tribunal seeks an endorsement order from the primary court.
The Ward Tribunals Act, (Cap 206) RE 2002), schedule 9, provides offences entertained by the tribunals defined by the Criminal Code (Cap. 16 R.E. 2002).
Offender fighting in public or ‘challenging another to fight a duel’, under the Criminal Code (Cap 16 RE 2002) section 88, the offender is fined 800 Tanzanian Shillings, this is equivalent to fifty one cents US Dollar, and if not paid the offender is imprisoned for up to two years maximum. The maximum ‘pecuniary jurisdiction’12 of the tribunal is 10, 000 Tanzanian Shillings, this is an equivalent of 6.38 US dollar. In similar way, the links such as that which is between the ward tribunals’ criminal justice and the conventional criminal justice is what Braithwaite’s considers to be his ‘most radical prescription’ (Braithwaite, 2003a: 10). He stated his conception of future restorative justice value of ‘accountability/appealability’ that, ‘principals to any restorative process about a legally significant matter, not just criminal matters, should have a right to appeal the restorative resolution to a court of law’ (Ibid). In that case restorative justice has priority over the criminal justice unless the offender is irredeemable by this system then he can be handled over to the conventional criminal justice system. In that sense, Braithwaite’s idea, discussed in detail in this paper, finds a legal framework that has been in place for nearly a century. In other words, the paper presents a microcosm for an idea of a restorative justice system. Other proposed parallel criminal justice systems still find that it is not necessary to civilize the criminal law in order to achieve restorative justice processes, as demonstrated in this paper.
This paper discussed the theoretical aspects of restorative justice. The theoretical gap identified relates to philosophical and methodological problems pertinent to the conceptions for what restorative justice entails and what it would likely become in the future. This paper demonstrated that the future of restorative justice systems requires a recalibration of Nils Christie’s article ’Conflicts and Property’ (1977), in order to conceptualise a restorative justice system which he called ‘the neighbourhood courts. The paper attempted to develop that concept by engaging with contemporary theoretical discussion, particularly with those that discussed a parallel criminal justice system and provided fresh restorative justice data as a contribution to the rethinking of a future restorative justice system.
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_________, (2011) ‘Academic Greetings’ a response to Joseph Chaggama’s email to clarify whether or not the ‘conflict’ he witnessed was based on ethnic line, 15/02/2011.
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List of Statutes
The Civil Procedure Act, (Cap 33 RE 2002)
The United Republic of Tanzania Constitution, 1977 (Cap 2 RE 2002)
The penal Code (Cap 16 RE 2002)
The Civil Procedure Act, (Cap 33 RE 2002)
The Land Act 1999, (Cap 113 RE 2002)
The Village Land Act 1999 (Cap 114 RE 2002)
The Ward Tribunals Act, 1985 (Cap 206 RE 2002)
The Land Disputes Court Act, 2002 (Cap 216)
The Local Government (District Authorities) Act, 1983 (Cap 287 RE 2002)
The Local Government (Urban Authorities) Act, 1983 (Cap 288 RE 2002)
The Judicature and Application of Laws Act, 1920, 1961 (Cap 358 RE 2002
The Marriage Law Act 1971 (RE 2002)
1 UN, Basic principles on the use of restorative justice programmes in Criminal Matters (section II, 6).
2 Paul Roberts, Restoration and Retribution in International Criminal Justice in, Andrew von Hirsch et al eds, Restorative Justice and criminal justice: Competing or Reconcilable Paradigms? (Hart, 2003)126-7.
3 Ann Skelton, Regional Reviews in Gerry Johnstone and Daniel Van Ness eds, Handbook of Restorative Justice (Willan, 2007).
4 The five sources of the laws of Tanzania according to their importance are: The Constitution of the United Republic of Tanzania, 1977; The Acts of Parliament or Statues; Judge made laws (Precedents) through court decision on the High Court or the Court of Appeal of Tanzania; The Received laws from England with the substance of, common law, doctrine of equity and statues of general application in force in England (Cap 358 RE 2002) s (2)3; The fifth source of Tanzanian law is the Customary and Islamic Laws.
5Available at < www.judiciary.go.tz>, ‘History of the Judiciary’, last accessed, 28/02/2012.
6 James S Read, ‘Justice on Appeal: A Century Plus of Appeal Courts and Judges in Tanzania’ in Maina Peter and Helen Kijo-Bisimba (eds), Law and Justice in Tanzania (Mkuki na Nyota Publishers 2007) 56.
7 The Constitution ‘preamble’ of the United Republic of Tanzania Constitution, 1977 provides that Tanzania as nation of unified people from different ethnic and national backgrounds is built up Ujamaa and Udugu the concept that is similar to Ubuntu mostly discussed as an Afro-centric view of restorative justice.
8 Nils Christie, ‘via email’ personal communication with the author, on the 15/02/2011. The question posed to Christie was ‘Did you manage to ask whether the parties in conflict were of a particular ethnic background? Christie confessed that he does not remember the details. However, he argued that it was in ‘the house of assembly where they all were’. Large houses at that time were mostly government properties. Under Ujamaait was illegal to own property that its values did not match with the income one earns. Ethnic groups like the Arusha, have particular way of dealing with conflict as Bottoms (2003) rightly argued using data from PHGulliver (1963). However, the conflict was beyond ethnic line as it was conducted in the village house of assembly that the only possible reasons for the ‘three party secretaries’ to hear the proceeding was the Arbitration Tribunals Regulation 1969.
9 A Ward Tribunal comprises several villages. There are two types of ward tribunals, Rural and Urban Ward Tribunals. The ward tribunals are complete courts for land disputes arising from The Land Act 1999, (Cap 113 RE 2002) and the Village Land Act 1999 (Cap 114 RE 2002). The decisions of the tribunals are final unless appealed to the High Court of Tanzania Land Division.
10 The power of a court or quasi-tribunal to entertain (to hear) the case for the first time
11 The legal power that a higher court in rank has to review the decisions made by the court below it in rank.
12 That is ‘Monetary Fines’