1. ARGUMENT
Let me hasten to say that this is a social argument, not a legal thesis, which of course would be structured and upheld differently.
The understanding of JUSTICE: Let me start with the obvious: Justice is a universal concept. However, this omnibus statement can as well hide many political objectives and interest-driven variants of what it should encompass.
I have chosen this topic because our African countries, having inherited, and in many cases never even changed anything from the inherited colonial systems, do apply justice in a manner that may not serve our collective interest of nation-building; nation, being understood as a cohesive community of geography, cultures, and commitment (or glued) to a collective future. We all know that the inherited justice (and government) systems come from Europe, where the leitmotif of state law is the defense of individual rights and private property. Conversely, for us in Africa, individual rights are deeply entrenched and subsumed in the mentality of the collective, of the family, of the village, of the clan or kin. Our fundamental uhutu/ubuntu philosophy is: I AM, BECAUSE WE ARE. Still, we inherited and retained a system whose philosophy is radically different: COGITO, ERGO SUM (I think, therefore I am). Our philosophy is reflected in the way we transact public business: how for instance, land is owned and inherited, how it is disposed of, and who is entrusted with the decisions of its use. An example, although with its peculiar political and economic complexities, is Tanzania. In that country, all land is held in trust by the President. How it came to be, is another discussion, irrelevant to my discussion, this time (relevant to other vital political discussions on land in Africa). So, without discussing its merits or demerits in the prevailing circumstances, we can safely surmise that this was a clear attempt at concatenating traditional systems with inherited colonial law. Another example is the fact that in our traditions, my child is the concern of all the village, of all relatives and neighbours: all are invested in seeing the child grow, behave, marry, and have a family. Similarly, grieving the death of a relative is a village concern, in the same way as celebrations are a whole-of-the-village affair.
I am positing that in Africa, we need to look at, and be inspired by, positivities in our cultural ways of dispensing justice. We seem comfortable to leave the African culture to history, thereby implicitly agreeing with the colonizer that his system is better after all, after the colonial administrator despised and dismissed ours as folklore.
Maybe the Japanese and the Indians also do it differently, according to their culture. Maybe the Chinese do it differently. For one, if the Chinese need manpower to build roads in Africa, or a Conference Centre in an African city, they will rather ship manpower from China, work day and night under spotlights, and deliver a solid building on time. That manpower may very well come from prisons in China. Meaning that Culture offers, not just an opportunity to exercise justice according to our objectives and ethical standards, but it also offers a socially-explainable set of outlets, as has been the case of the Portuguese, who offered alternatives to their prison population: you can continue languishing in prison, or we can send you to our colony in East Africa (Mozambique) and there, you will be free to fend for yourselves. Or the British prisoners who were offered Australia as an opportunity to serve sentence differently; one could seek more examples of history.
We in Africa, have largely relegated our cultures to the background and have adopted European models of justice, robes, wigs and all. In the process, we make no effort at academic research on the traditional ways of dispensing justice, its values and relevance to our way of looking at life and fairness, and the world.
2. THE CONCEPT OF JUSTICE
Before I develop my argument, a brief set of definitions could help us understand my thought. First, another universal truth: Justice is a concept that fits fully into, and is derived from, the notion of social justice.
Social justice is the rule and prevalence of fairness in a community. Fairness in access to care, to employment, equal treatment of the members of a community, respect for the rights of the human being to life and to property and avoidance of all sorts of discrimination.
Justice is part of the Social Contract, a notion that has emerged and evolved as the ethical foundation of the nation-state, justifying the existence of that state. It is expected that the communities defined by the geographical space of such a state will live by this contract. Social Contract is built on the expectation that people living together in a society will conduct themselves according to an implicit agreement about historically-established moral and social rules of behavior. As such, Social Contract presupposes the existence of a moral and ethical construct. A social contract is hence a situation whereby the individual surrenders part of his/her liberties to the state, in exchange for protection by that state, allowing a collective or society to live in harmony. The exercise of my liberties is limited by the need for the next person to me to also exercise his/hers. The enforcer of these limitations is the state.
A social contract is therefore an implicit agreement between members of a collective, a society, a state, that it is in everyone’s interest to have and enforce rules that guarantee security and safety for all members of that society, including the most vulnerable. Those rules, over time have come to be codified into (municipal) law and enforced by a political-administrative system which regulates a country or a society – a government.
In many cases, neither the state nor the individual have a clear idea of the social contract binding them. Indeed, many a times, the state feels it is above the individual and becomes dictatorial. A chapter for another time, maybe. We also have individuals that behave contrary to the accepted and expected social norms. And they run into the logical, but nevertheless mechanical wheels of Justice.
How does justice deal with the individual that breaks the social contract? It throws a whole repressive machinery on the individual, of which the police are the notorious bridgehead: arrests, limitations of movement, statement of charges, arraignments in court, court decisions and execution of orders. In most cases, these orders range from restitution, reparations, community work, forced labour, fines and further limitation of freedom of movement and correction/punishment by imprisonment. In extreme cases, the execution of the perceived culprit, although death sentences are slowly fading into history.
3. THE CHALLENGES OF OUR JUSTICE
Why would I consider that our systems are challenging? Because of processes, in particular the practice of jail. First (my mainstay argument), I challenge jail sentences as currently practiced as a waste of human capacities, the warehousing of human beings in mostly inhuman conditions; unless you are a Minister, and then you could be lucky to be held under house arrest, in the company of your family. Jail as practiced in most countries muddles the whole purpose of a justice system, because the objective of dispensing justice should be, at one and the same time: restoration, correction, retribution, deterrence (punishment) and rehabilitation. All of these components can already be found in the Code of Hammurabi , one of the most ancient foundational sources of law (Hammurabi, King of Babylon, current Iraq, 1792 to 1750 BC).
Enough of scholarly reference, before I venture into territory that I do not fully master. Let me take you to the social facets of the concept and practice of justice as follows: the impact we seek, the impact we may get, and the impact we may miss.
The impact we seek: if someone steals your property, the first thing you want is the full retrieval of the stolen property. The second thing you seek is more or better protection so that there is no further attempt to dispossess you of your property. And thirdly, corollary to the second, you want the perpetrator to be punished, hopefully by the community system, in an exemplary manner, to dissuade others from trying the trick on you or on other members of the community.
The impact we get is directly related to the tools used to pursue the first impact, how they are applied, and their effect on the primary target people, victim and perpetrator. We may not seek an impact that eventually turns out contrary to our expectations or quest, but the tools and how they are used will determine the outcome anyways. That includes also the proportionality between the punishable act and the intensity of the actual punishment, and may mean also an unexpected impact on the wider community.
The impact we miss: and by the way, we may miss all we seek. A clear example is the massive 2.1-billion US dollar hidden debt of Mozambique, discovered in 2016, and whose trial took place in 2021. The 19 netted defendants may account for no more than 100 million dollars, give or take a few more cars and luxury items, a few buildings, maybe no more than 150 million. The trial does not account for the full 2.1 billion dollars. The format was just not indicative of a serious pursuit of all the expected outcomes. The public may have been justified if it was ever flabbergasted by the proportionality between $2.1 billion and 11 years of imprisonment in the current poverty conditions of the country’s population. And may be wondering about the future impact of such a sentence on public perception as a deterrent value. Those being punished may just want to sit time out in prison.
The impact we miss can be illustrated by a less dramatic example we all can relate to in Africa: your brother steals from your house your full day’s sales proceeds before you deposit them in a bank because he knows where you put it, and has the confidence of your housekeeper. He comes as a visitor and leaves before you arrive. You discover that, you interrogate your staff and conclude that indeed it was your brother. You put the police on him, he is arrested, and you wish that serving his full jail sentence will be a lesson to him. But then, your father, uncles and aunties, hear about it, and decide to descend on you, to plead with you that you should never send a blood brother to prison (just because of money!), it is just not done! And you have to give in to the family pressure.
I am asking: our systems, whose system anyway? Is punishing the ultimate outcome? It is a necessary tool but not the end solution: restore, yes, highlight an example not to follow yes, but there may be need to combine punishment as an outcome with an ultimate objective: of rehabilitating the putative criminal. At core, (s)he still remains a human being.
If a social contract is to be fully perceived as positive, it has to lead members to behave better than just refraining from doing wrong. The government, as an enforcer of the social contract, can and could seek more positive ways of effecting and affecting justice by coupling measures designed to limit freedom of offenders, with punishment certainly, but with an inclination towards developing a positive attitude and outlook: improve the human capacities of people while in prison. Prison, in this case, could be more than punishment. While the offending individual is in the hands of justice, design and implement technical skills training programmes adapted to ages, conditions, inclinations, potentials and skills of the prisoners. By the end of their sentence, they could come out with skills that make crime a rejected option and become useful to society: carpentry, teaching, vehicle and motor repair, distance learning, name it. With the support of technical partners such as the ILO, and of financial partners such as the African Development Bank, such programmes would first, revolutionize the practice of prison, rehabilitate the prisoner and release into society a person with skills and a positive outlook, who is not bitter with society for putting him/her away for long. And who will not carry a burden of stigma.
Constructed in this manner, justice would be perceived, not just as the preserve of lawyers and the police and an elitist exercise, but also one that involves other positive social forces such as counsellors, teachers and trainers.
Otherwise, we continue experiencing all the evils of a prison. Someone has stolen three chickens, sentenced to a few months, and forgotten in prison for ten years, until a prison inspection by mere chance notices that he had been forgotten in prison. How do we expect such a person to fit in society? How does that person look at society?
An aggravating factor is that with current systems, in many African countries, prison space has long ceased to be enough: prisons that were built by the colonizer, way before 1950 and meant for a few hundred persons are now holding perhaps as much as ten times more. Meaning, if justice is delivered in the same unimaginative way, we will need more prison space, just going by the demographic growth, all other variables remaining constant. And building prisons is not in our priorities. Schools, health centres, and roads remain our priority infrastructure. And if prisons are not expanded, then human beings (criminals shall be recognized as human beings) are being treated sub-humanly. overcrowding brings with it not just health and sanitation problems, it brings along abhorrent social behaviours and lifetime traumas. The tail question remains: is the expansion of prison space a real social solution?
4. CONCLUSION
It is for me safer to mirror my reflections on a country that I know and I belong to. In Mozambique, immediately after independence, we did have what were called “reeducation camps”. The concept may not have been correctly explored, but if the powers-that-be had stopped to conceptualize the philosophy behind (o homem novo) and to regulate the practice as a purposeful long-term social engineering, it would not have fallen into the futility of trying to socially re-engineer people, to focus instead on social reengineering of systems. In fact, with the benefit of hindsight, it was a positive philosophy with disastrous consequences in the way it was heavy with political motivation of suppression; an enterprise that should have been led by a desire to correct and to socially reintegrate without creating the sense of victimization. A prison could be turned into a reeducation site, if the bad memories of reeducation had not permanently tainted that experiment and concept, which was supposed to be social but became purely political.
In elaborating this argument, I am inspired by an embryonic project of a lady in Tete, my small town by the mighty Zambezi River, by the name of Suzette who has decided to seek and work towards positive ways of ensuring that correctional facilities do not traumatize the prisoner so much that all (s)he wants is to repeat the crime, end back in prison and become a recycling client of prison because each time (s)he is released, (s)he feels ostracized by the community, and in any way cannot fit in a community that is evolving. Should anyone be interested in supporting such an endeavour, the seed and intelligence is available, all they have to do is indicate that intention to me and I will seek her permission to share the contact.
Above all, I am positing that our legal minds and our institutions of higher learning could dedicate substantial capacities and muster resources to researching our traditional systems, foundational philosophies, compare across African countries and perhaps provide solid academic, legal and institutional platforms for INNOVATION. And give us for once an institution that is rooted in the African culture, inspired by European and other systems no doubt, but perhaps with a strong African heritage. Could that give us a different and better society?
We need courage to socially reengineer our systems. Not only justice, but let us remain with justice and later I will analyze Education.
My point: reinventing our stale and alienated state institutions. “How dislocated are they?”, you would ask. You just have to look at relations between the holders of the powers of the state and the citizen in any country for a cogent answer.
15 April 2023
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