Mike Batley is the CEO of the Restorative Justice Centre and Anneke Scheepers is the public relations and advocacy officer at Nicro.

The proposal by the SA Council of Churches that there should be some kind of conditional amnesty for looters in response to the painful events of the past week is an excellent starting point.

It recognises the context in which the events occurred — a context characterised by extreme poverty and unemployment combined with some of the most extreme inequality in the world. Hardship has been exacerbated even further by the pandemic. The proposal also recognises that making amends through restitution and repair should be part of — if not central to — justice.

However, given the history of amnesty in our country, this idea is likely to be highly contested. Some writers have also questioned whether one could distinguish between the different categories of looters. 

While this latter analysis is generally supportive of the concept, it suggests that it falls short of justice, as Daily Maverick’s Greg Nicolson writes:

“If the question of amnesty comes down to allowing desperate looters to evade prosecution while some serious offenders fall through the cracks, it should be granted. It would allow and put pressure on the SAPS and the NPA to prioritise the instigators of violence and those who committed serious crimes during the attacks.

“At the same time, we must ask, when will the repeated calls for amnesty end and when can justice finally begin?”

A better way?

Framing this option as an amnesty (letting people off) is inherently problematic in a culture where impunity and lack of respect for the law are high across the board. Indeed, these may have been some of the factors that helped drive the looting spree in the first place.

At the same time, there is clearly a sense that we need options beyond the usual punitive response of our court system. First, there is the real danger that those who have been arrested so far would be scapegoats — there have probably been close to 500,000 people who have benefited from the looting, yet less than 2,000 (<0.4%) have been charged. They may simply be the ones who got their timing wrong and have been arrested as part of a PR exercise, rather than a comprehensive, consistent just response.

Second, there is little scope within the usual response of the court system to recognise the context in which the events occurred, and without minimising individual responsibility, to encourage some collective acceptance of responsibility, to recognise the role that instigators played and how the wider community and society have failed in allowing these events to occur.

We argue that the approach of restorative justice and the practice of diversion are the tools we should harness. Both are internationally accepted as good practices and are also integrated into our own justice system. 

“Restorative justice aims to repair the harm caused by crime. When victims, offenders and community members meet to decide how to do that, the results can be transformational. Restorative justice emphasises accountability, making amends, and — if they are interested — facilitated meetings between victims, offenders, and other persons.”

Diversion, a key component of restorative justice, is defined in SA’s Child Justice Act as diverting a matter away from formal criminal court procedures according to set procedures. It is also used for adults (though not often enough) and is governed by the policies of the NPA.

In the case of children, all referrals for diversion need to be assessed by a probation officer from the Department of Social Development (DSD). However, where adults are concerned there are no requirements that the assessments need to be done by probation officers from DSD. As such, social workers from organisations like the National Institute for Crime Prevention and the Reintegration of Offenders (Nicro) do many of the assessments to determine whether a particular adult is a suitable candidate for diversion. The decision of whether to divert is then made by the prosecutor. Upon approval, the diversion programme then commences, whereby the person in question is rehabilitated and amends are made between them and the victim(s).

Applying the principles of restorative justice in our approach to the cases of those apprehended in the looting would deal with the problem of how to distinguish between different categories of looters. It would create the opportunity for dealing with the trauma of the violence at a community level and create platforms for truth-telling at various levels. For all its shortcomings, our Truth and Reconciliation Commission demonstrated the power that such platforms have.

Critically, in addition to restitution, it would open up access to programmes already in place such as individual and group interventions, dialogue circles where appropriate, community service and access to other resources such as community feeding schemes.

The restorative justice approach would also prevent the further filling of our prisons with people for whom incarceration is very likely to do much more harm than good and whose families and communities would suffer further as a result.

A national campaign

We call on the government to shape these ideas into a national campaign that is driven from the Presidency. We in the non-government sphere are eager to engage with the government on how to take the principles of restorative justice forward in dealing with the aftermath of the looting. Some community and faith leaders have already indicated their interest in the concept and could play a vital role in encouraging individuals who participated in the looting to exercise their conscience and do the right thing, together with support from their community. In this way, the events of the past week can be a constructive moment of learning and development for us all. DM/MC

This article is authored on behalf of the Detention Justice Forum, a civil-society membership organisation. It seeks to ensure that the rights and wellbeing of those who are detained are respected and upheld, as enshrined under the South African Constitution, laws, and international human rights norms and standards.