Fortnight Publications Ltd.

The Authority VacuumAuthor(s): Janet CherrySource: Fortnight, No. 401 (Dec., 2001 - Jan., 2002), pp. 12-13Published by: Fortnight Publications Ltd.Stable URL: http://www.jstor.org/stable/25560465 .

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I CURRENT AFFAIRS 1

The authority

vacuum

In the transitional

society violence can

remain a motive force.

Janet Cherry considers the options

for an equitable justice system for the north

A he problem with transitional violence is that it

embraces both criminal and political violence, which

have to be dealt with in different ways. South Africa

in the 1990-1994 period was in many ways similar to

Northern Ireland since 1998. During the peace

process, despite the ceasefires of the main protago nists and a

corresponding decline in certain forms of

political violence, there was a rise in other forms of

violence including criminal violence.

This can be seen in part as resulting from a

'vacuum of authority', where the police and jus tice system are not yet seen as legitimate by some

communities, or do not have the political will to

deal with the problem. In such situations, strong local networks, sometimes controlled by,

or with

links to, paramilitaries, are formed to deal with

crime. There are local variations in such struc

tures, and variations as well in relation to whether

they combine policing with justice. Typically,

they combine some form of 'community policing' with some form of 'justice'.

In South Africa during the transition, the policing and justice functions were combined by street and

area committees, people's courts, anti-crime com

mittees and self-defence units. The 'justice' function

of such bodies varied from the 'restorative justice' of

apologies and returning stolen goods, reparations in cash or in kind for wrongs done, to the 'rough

justice' of beatings or at worst the mob justice of

burning and stoning the 'guilty party' to death. In

Northern Ireland, the brutal punishment beatings or shootings of offenders by covert paramilitary

organisations are?but only in some cases?replaced

by the alternative, restorative options of community restorative justice schemes.

After 1994, the democratically elected govern ment of South Africa transformed the police (SAP)

and army (SADF), including renaming them the

South African Police Service and the South African

National Defence Force. They rapidly gained legiti

macy among the vast majority of South Africans, not

primarily because of demographic changes in their

membership or

leadership, but because they were

now accountable to a democratic government. For

example, in the Eastern Cape province?one of the

most militant and violent regions of South Africa?

the newly-appointed Member of the Executive Coun

cil for Safety and Security was Dennis Neer, a black

ANC member, former trade-union leader and ex

detainee who was severely tortured by the apartheid

security police. Many people (including myself) felt

a real sense of security that someone who was non

militarist, democrat and a victim was responsible for

the police.

Along with human rights training for the police, went the creation of Community Police Forums.

These structures institutionalised the relationship between the old community-based anti-crime bodies

in the black townships, and the local police service.

Co-operation between police and township struc

tures was formalised, and now works well? but only

up to a point. Notions of restorative justice are

embraced at local level, but only for petty offend

ers?'anti-social activities' as they

are called here.

Neighourhood disputes, youth creating distur

bances, girls getting into trouble, the theft of a

radio or washing off the line?these can be dealt

with by the local committee. Depending on the

particular committee and the circumstances and

nature of the 'crime' the offender will either

apologise and make reparations, or be 'given a

good thrashing'. The problem is that there is no 'due process'

followed by such committees, and decisions and

actions taken are often dependent on

particular individuals. An even more serious problem, of

course, is that violent crime cannot be dealt with by these committees (who are not armed), and the

police are

seriously under-resourced and lacking in the capacity to deal with violent crime. Both

police and local committees easily revert to their

old training and traditions, and beat people up rather than do proper investigation. Even worse,

where the police do not intervene in cases of

violent crime?rape and child abuse in particu lar?there has been a resurgence of 'mob jus tice' and vigilante killings, often the stoning or

burning to death of the suspect. Restorative justice in Northern Ireland has been

a response to the lack of legitimacy of the police and

justice systems, and the similarly brutal punish ments meted out by paramilitaries. Taken up by

those people?often ex-prisoners and ex-paramili taries themselves?who are concerned to prevent

vicious 'punishment' attacks, they claim to have had

significant success in preventing such attacks. The

paramilitaries in turn claim to be responding to a

real need for peacekeeping and crime prevention in communities where the police, for one reason or

another, are either not legitimate or not effective in

playing this role.

What will happen to such projects when the

police and justice systems become legitimate, as

happened in South Africa? Is there a role for such

projects, or for the concept of restorative justice

itself? Sinn Fein has welcomed the publication of

the British government's draft legislation and its

response to the Criminal Justice Review Group's

recommendations, and is concerned in particular to see how the legislation will deal with restorative

justice, among other things. Even the Home Of

fice* is looking into restorative justice, presumably with a view to seeing how the justice system in the

UK?including Northern Ireland?can be re

formed.

It seems to me that there are two levels at which

the notion of restorative justice can be put into

practice in the future. One level involves commu

12 Fortnight December 2ooi/january 2002

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current affairs I

nity responsibility for crime, especially 'anti-social

crime' which can be resolved by mediation and

reparation between the various parties?much as

the restorative justice projects are

doing now, but

with the co-operation of, and within the framework

of, policing and justice systems which are reformed,

transformed and legitimate within the eyes of the

communities within which they operate. They need

to do so without interfering in the private lives and

choices of ordinary citizens.

The other level involves accounting for political acts committed in the past?whether before the

Good Friday Agreement, or in the period of transi

tion since then. We don't have to remove justice

entirely from the transition equation. While amnes

ties or other provisions of negotiated settlements

may mean that prosecution of perpetrators is

precluded, there may be a place for a less retribu

tive notion of justice. I would argue that there is

a strong case for restorative justice which is linked

to notions of acknowledgement and accountabil

ity. Instead of seeking prosecution for crimes

which can be considered 'political', local com

munities can be involved in a process of hearing those who offended them acknowledge the suf

fering caused, and possibly become involved in

some form of reparation through community work. Indeed, many ex-prisoners have not only served time through the retributive criminal jus tice system, but in addition are now involved in

constructive community projects. Here, restora

tive justice goes hand in hand with open acknowl

edgement by perpetrators of such 'crimes',

accountability to victims and communities, and

in return, some form of relief from the prevailing retributive notion of justice. This might entail assur

ances that certain cases will not be prosecuted, or

that ex-prisoners are no longer discriminated against.

These legal provisions, short of a 'blanket amnesty', are

acceptable to both victim and perpetrator com

munities when combined with an open process of

accountability. There is considerable resistance to 'truth seeking'

processes in Northern Ireland, as there is a reluc

tance on all sides (including the state) to 'rock the

boat' by encouraging people to publicly account for

acts. However, in response to the idea that paramili taries are responsible for 'bringing the cold in' to the

transition process, I am inclined to take the part of

the footsoldiers on both sides of any conflict, and ask

the essential questions: in whose name did they act?

Did the political leadership fail to get their hands

dirty, and then symbolically wash their hands of such

'bad apples' once the conflict was over? And let us

not forget about societal accountability. Did you give

your consent to such acts by your silence or failure to

act in other ways? Did you rely on them (state or

paramilitaries on either side) for your own sense of

security? Some have called my first forays into Northern

Ireland politics on the issue of decommissioning

and demilitarisation 'whimsical' and 'idealistic'. Lest

I be thought to be a judgmental liberal outsider, or

one of those many cynical academics benefiting

financially from transitional violence studies, it should

be made clear that I was deeply involved in the

conflict and subsequently in the Truth and Recon

ciliation Commission process. In 1990,1 celebrated,

along with most South Africans, the unbanning of

the ANC, the release of Mandela, and the return of

friends from exile and prison in the subsequent months and years. I felt relief when the Pretoria

Minute was signed in August 1990, and the ANC

ended its 30 year armed struggle. The horror of what

subsequently unfolded (with more killings in four

years than in the previous three decades) was too

difficult to deal with?even the SA Truth and Recon

ciliation Commission has been unable to do so

effectively, being too close to events to make sense of

them.

There are 130,000 legal small arms?euphemisti

cally termed personal protection weapons?in North

ern Ireland, in addition to the many illegal guns held

by paramilitaries on both sides. Violence is still the

'primary language' of people in poor communities,

whether loyalist or nationalist, whether the violence

of men in their own homes, or the violence of young hoods or drug dealers or

paramilitaries. I am not

greatly reassured by those who tell me that violence

here is at 'acceptable levels', and that firearms are

'under control'. What I am trying to do here is simply to issue a warning, directed especially at those who

find it hard to lay down their weapons: don't go where South Africa went in that deadly transition

process.

Restorative justice, or 'punish ment' beatings fill the authority vacuum

* David Miers, An Interna

tional Reviexv of Restorative

Justice, Crime Reduction

Research Series Paper 10,

Home Office, September

2001; and David Miers et al,

An Exploratory F.valuation of Restorative Justice Schemes,

Crime Reduction Research

Series Paper 9, Home

Office, September 2001.

DECEMBER 2001/JANUARY 2002 FORTNIGHT 13

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