Is punishment the appropriate response to gross human rights violations? Is a non-punitive justice system feasible?

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Date: 15 August 2019
• Citation: 2007 Acta Juridica 209
• Author: Ezzat A Fattah
• Pages: 209-227

Part III

RETRIBUTION AND RESTORATION IN

CRITICAL PERSPECTIVE

Is punishment the appropriate response to

gross human rights violations? Is a

non-punitive justice system feasible?

EZZATA. FATTAH*

Simon Fraser University, Vancouver, Canada

I INTRODUCTION

Let me start by telling a personal story. It is the story of how, more than

three decades ago, I was converted to the idea and principles of

restorative justice. Thirty-f‌ive years ago, in the heated struggle to get

Canada to abolish capital punishment, I decided to test the popular and

widely-held, though unproven, belief that the death penalty is a unique

deterrent. To do so, I conducted a study of the quantitative and

qualitative regional variations in criminal homicide rates across Canada.

1

The results showed that the faith placed in the deterrent effect of the

death penalty lacked any scientif‌ic or empirical support. One of the

lessons the study taught me is that homicide research can, in many ways,

be very enlightening for the discipline of criminology, much more so

than other offences against the person or against property. So when

shortly afterwards I was visiting the Ivory Coast as a guest professor at the

University of Abidjan, I decided to do a study ofAfrican homicide to gain

a better understanding of the impact culture has on the rates, the nature

and the types of criminal homicide. As a former French colony, the Ivory

Coast inherited a good system of record keeping and this, I thought,

would both facilitate and enhance the validity and reliability of the study.

So with the usual diligence of an enthusiastic researcher I carefully

examined the national police records on criminal homicide during the

*PhD,Dhc(Liege),FRSC,Professor Emeritus, School of Criminology, Simon Fraser

University, Vancouver, Canada.

1

E A Fattah A Study of the Deterrent Effect of Capital Punishment with Special Reference to the

Canadian Situation (1972).

209

2007 Acta Juridica 209

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previous ten years. Very soon I noticed that there were only a few cases

recorded in the rural areas and the small villages of the Ivory Coast.

Could it be that the rural population in the country was much too

peaceful to kill one another? Well, no. There was in fact another

explanation. Once I probed further into the possible reasons for such a

f‌lagrant discrepancy, it did not take me long to realize that there were

two, almost parallel, systems of justice operating in the Ivory Coast. One

was the Western punitive system, inspired by the expiatory and

retaliatory teachings of the Old and New Testaments, a system that was

imposed on the Ivoirian population by the colonial power, France. The

system used mainly a two-pronged weapon in its response to crime:

death and imprisonment. The second was the indigenous, tribal system –

call it patriarchal if you want- that used customary rules and traditions to

solve conf‌licts and to settle disputes of all kinds between the members of

the community.

Getting no satisfaction from the Western system of punitive, retribu-

tive justice, and unable to comprehend why the state should steal the

conf‌licts from their rightful owners (to use Nils Christie’s 1977

2

idea)

while doing nothing to compensate the victim’s family or to achieve

reconciliation between the feuding clans, those victimized simply did not

report the homicides to the police, preferring instead to have the matter

dealt with according to their norms and their customs. The two elements

of this indigenous justice were compensation (for the death, injury or

harm done) and reconciliation aimed at restoring the peace disrupted by

the offence and at ensuring a future of harmonious co-existence.

This valuable learning experience brought to memory a remarkable

case that I came across when studying the history of capital punishment in

Canada. The case happened in a British settlement in the Canadian

North during the early years of the British Colonial Rule. It is the story

of a Chief of one of Canada’s First Nations tribes whose son was killed by

the son of the British Garrison Commander. Intent on showing the

fairness and equality of British justice, the off‌icer insisted that his son be

executed in conformity with British law. The pleas of the victim’s father

fell on deaf ears. He offered to adopt the killer so that he may replace his

slain son. He could not, despite his personal grief, understand the

rationale for the death penalty, the wisdom of doubling the loss instead of

trying to minimize it. He asked himself and the commander what

purpose would be achieved by taking the life of the culprit. But to no

avail. The TalionLaw – a life for a life, an eye for an eye, and a tooth for a

tooth – had to be applied. And the so-called civilized Western justice had

to prevail and did. The evident futility and destructiveness of such

2

N Christie ‘Conf‌licts as Property’ (1977) 17(1) British Journal of Criminology 1–19.

210 RESTORATIVE JUSTICE:POLITICS,POLICIES AND PROSPECTS

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