‘He must buy what he stole and then we forgive’: restorative justice in Rwanda and Sierra Leone

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Date: 15 August 2019
• Citation: 2007 Acta Juridica 171
• Author: Bruce Baker
• Pages: 171-192

‘He must buy what he stole and then we

forgive’: restorative justice in Rwanda

and Sierra Leone

BRUCE BAKER*

Coventry University

I INTRODUCTION

The emphasis on resolving disputes collectively through the interaction

of victim, offender and members of their communities has a long history

across Africa. Indeed it is still a dominant focus in justice structures

outside of the formal state sector. And since mostAfricans use non-state

justice systems, restorative justice is how most civil and criminal disputes

are handled. The agencies using elements of the restorative approach

include: customary courts, justice community-based organisations

(CBOs), local government structures and work committees. All use

restorative justice to varying degrees to resolve both minor and serious

disputes within their governance contexts. I say to varying degrees,

because none meet all the characteristics of restorative justice as

commonly def‌ined by its advocates. On the positive side: they all see the

harm done by crime as an offence against a person; they allow victims the

opportunity to participate; they bring victims and offenders together to

consider what has happened and to f‌ind a mutually acceptable resolution;

they encourage responsibility for actions; and seek the agreement of the

offender not to repeat the harm and for both sides to live in peace. On the

negative side: some do not operate a voluntary process; some still

over-emphasise apportioning guilt and blame; and some still seek

punishment, including disrespectful or degrading punishments, such as

public corporal punishment and shaming.

This paper examines the Sierra Leone chieftaincy courts, the Rwanda

local government structures, and the Rwandan genocide courts known

as gacaca, and then looks more brief‌ly at a justice community-based

organisation in Sierra Leone, and work-based associations in Rwanda

and Sierra Leone. All use restorative justice methods of dispute

resolution, including facilitation, negotiation, mediation and reparation.

For each example, an evaluation is offered based where possible on

answering seven questions:

* MA (Coventry) Ph D (Coventry); Professor of African Security, Coventry University,

UK.

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2007 Acta Juridica 171

© Juta and Company (Pty) Ltd

1 How do the public and the formal justice system assess it?

2 Are the victims and perpetrators (and community) brought together

voluntarily?

3 Is the process conducted with equity and transparency?

4 Is the offender encouraged to accept responsibility for harm caused

and liability to repair such harm?

5 Does the process seek an agreement not to repeat the offence and

establish measures to prevent re-offending?

6 Does it reject disrespectful and degrading punishment?

7 Do the participants adhere to the agreement?

The paper concludes with an assessment of the potential and limitations

of a restorative approach to crime in Rwanda and Sierra Leone in

particular, and Africa more generally.

The account is based on aspects of research into policing undertaken in

2005 and 2006. Semi-structured interviews, focus groups, workshops

and observation were undertaken among providers of policing; users of

policing and key f‌igures from government administration, the commer-

cial sector, non-governmental organisations (NGOs), the political/

juridical sector, and the diplomatic/donor sector.

1

II SIERRA LEONE CHIEFTAINCY COURTS

The chiefs’ courts, for all their recent demise, are still probably the

predominant administrators of justice in rural Africa, even though some

countries have stripped them of their judicial powers and handed these to

lay magistrates. Though they operate on the basis of customary law, they

typically work within national constitutions. The courts have a concilia-

tory character, in that they aim to restore social order and peace between

members, following such matters as petty theft, f‌ights, out of wedlock

pregnancies, adultery and land disputes. If the dispute cannot be resolved

informally, the disputants will go to the village headman. The procedure

has a semi-judicial character and the dispute is examined thoroughly. If

the plaintiff does not obtain satisfaction, it can be taken to the chief’s

court, where the chief acts as the judge. The chief’s court is a public affair

in that everyone (usually all adult men of the tribe) can freely participate.

The men present have the right to cross-question the parties and to

express an opinion as to what the decision or verdict should be. When

the chief formally pronounces the verdict of the court, he seeks to ref‌lect

the consensus of opinion expressed by those present. Punishment may

1

The research in Sierra Leone was funded by the Economic and Social Research Council

(Award Reference: R000271293) and Coventry University. The research in Rwanda was

funded by the ESRC (Award Reference: RES–000–23–1102). Transcripts of the 500 or so

interviews are available at the ESDS web site, which is available at www.esds.ac.uk.

172 RESTORATIVE JUSTICE:POLITICS,POLICIES AND PROSPECTS

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