Restorative Justice
Introduction:
This note will discuss the meaning of restorative justice, the need for it, particularly in light of the challenges with the current criminal justice system, its legal basis in Ghana, and the common programs associated with it, such as family group conferences, victim panels, victim-offender mediation, and circle sentencing.
Meaning of Restorative Justice:
Per Black’s Law Dictionary, 9th ed., restorative justice is:
An alternative delinquency sanction focused on repairing the harm done, meeting the victim's needs, and holding the offender responsible tor his or her actions. Restorative-justice sanctions use a balanced approach, producing the least restrictive disposition while stressing the offender's accountability and providing relief to the victim. The offender may be ordered to make restitution, to perform community service, or to make amends in some other way that the court orders.
According to Umbreit [1],
Restorative justice emphasizes the importance of elevating the role of crime victims and community members, holding offenders directly accountable to the people they have violated, restoring the emotional and material losses of victims, and providing a range of opportunities for dialogue, negotiation, and problem solving, whenever possible, that can lead to a greater sense of community safety, conflict resolution, and closure for all involved.
The author added that under restorative justice, there is a focus on three client groups: crime victims, offenders, and community members. This focus is different from the focus in conventional sanction systems where the focus is primarily on punishing the offender.
Finally, according to Dignan [2], the most widely accepted definition of restorative justice was by Tony Marshall, an early advocate of restorative justice, who defined restorative justice as:
A process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of that offence and its implications for the future.
Challenges with the Current Criminal Justice System and the Need for Pursing Restorative Justice:
A. Recognition of the Challenges of the Current Criminal Justice System and the Need for Restorative Justice:
It has been severally recognised that the current criminal justice system where offenders are punished (usually by imprisonment and fines) and almost noting is done for the victim leaves much to be desired. For instance, in the Supreme Court case of Isa v. The Republic [2003-2005] 1 GLR 792 , the court advanced that:
Admittedly, modern jurisprudence frowns on custodial sentences and considers restorative justice more beneficial and economical to the society.
In the more recent case of Amankwah v. The Republic [2021] GHASC 139 (21 July 2021) , their lordships again shared this view when they advanced that:
On the basis of our delivery so far, we can safely conclude that there is an urgent need to reform our criminal justice system with particular reference to consideration of restorative justice and also suggest alternatives to custodial sentence and possibly introduce “parole” for well behaved prison inmates.
B. Challenges with Current Criminal Justice System:
1. Exclusion of Victims:
When a crime is committed, the focus is often on punishing the offender and not on meeting the needs of the victim or restoring the victim to the position he was in prior to the commission of the offence. This was recognised by Dignan [2] as follows:
The criminal justice system’s approach towards victims has in the past been characterized – at least within common law jurisdictions – at best by neglect and at times by insensitive and harsh treatment. One symptom of the low priority that has historically been accorded to victims is the tiny proportion of the total criminal justice budget that is devoted to meeting the needs of victims.
According to the author, victims began to be neglected when the state assumed primary responsibility for the prosecution of offenders instead of leaving it up to the victims themselves. With this, crime was viewed principally as an offence against the state. This fact was recognised in the case of Republic v Yebbi & Avalifo [1999-2000] 2 GLR 50, where it was stated that:
Now, it cannot be doubted that jurisprudentially, every crime is an offence against the State. As defined in Barons Law Dictionary, crime is: "Any act which the sovereign has deemed contrary to the public good; a wrong which the government has determined injurious to the public and hence, prosecutable in a criminal proceeding.
The understanding of crimes being offences against the state has substantively contributed to the neglect of the victim. Per Dignan [2], while the development of the idea that crimes are offences against the state had the advantage of freeing victims of a responsibility of conducting their own investigations and prosecutions, “there was also a price to be paid in terms of a distancing and disempowerment of victims from ‘their’ case.” He proceeds to highlight that victims are neglected in terms of status, role, and entitlement to redress.
In terms of status, the author highlighted that victims have no formal status within the proceedings, as there are only two parties to a case: prosecution and defence. Further, he highlighted that the victim is not entitled to special consideration or harm by virtue of the harm they may have experienced. Further, the victim does not have information about “their case” in terms of whether the accused has been arrested, bailed, or sentenced, among others.
In terms of role, victims have no formal role and only play the role of providing information to prosecution and testifying in court as a witness for the prosecution. Even if they are being made to play this role, they are often not given special provisions such as separate waiting rooms or facilities beyond what is generally available.
In terms of entitlement to redress, the decision to even prosecute is left to the state. On grounds of public interest, the state may decide to not prosecute, and a victim does not even get redress by the punishment of the offender.
2. Overemphasis on Punishment:
The criminal justice system is extremely focused on punishing offenders. This focus becomes clear when one looks at the provisions of the Criminal Offences Act, 1960 (Act 29) and the Criminal and Other Offences (Procedure) Act, 1960 (Act 30).
This focus is problematic for a host of reasons. First, it fails to address the root causes of a crime and only seeks to make an offender suffer for his acts or omissions. Second, it fails to rehabilitate offenders. Third, it ignores the needs of victims.
3. High Rate of Recidivism:
Recidivism has been defined by Black’s Law Dictionary as
A tendency to relapse into a habit of criminal activity or behaviour.
When the root causes of crime are not addressed, there is a high likelihood that a past offender will commit the offence again. Also, when the offender does not fully appreciate the impact of his acts or omissions on the victim and the community, he is less likely to develop genuine remorse, which prevents him from committing further crimes. Finally, it is often said that when a first-time offender gets in touch with hardened criminals while in prison, there is a high likelihood that they will adopt more criminal tendencies rather than reform.
4. Pressure on Courts and Prisons:
When several offenders are prosecuted and sent to prison, both the courts and prisons are under pressure. Courts handle numerous cases daily, and an overreliance on prosecution and imprisonment results in case backlogs.
Also, sending more offenders to prison increases the inmate population, leading to overcrowding. Overcrowded prisons often struggle with inadequate facilities, poor sanitation, limited healthcare, and security concerns.
5. Adverse Effects on Families and Communities:
When there is a high rate of recidivism and the needs of victims of offences are not addressed, families and communities are ultimately left to deal with repeat offences and unhealed or neglected victims.
Second, families suffer when convicted persons who are breadwinners are given custodial sentences.
Legal Basis for Restorative Justice in Ghana:
In Ghana, the legal framework for victim-offender mediation primarily enables the court to refer a criminal action to victim-offender mediation. This is evident in the Courts Act, 1993 (Act 459), the Alternative Dispute Resolution Act, 2010, Act 798, and a Practice Direction on Disclosures and Case Management in Criminal Proceedings issued by Chief Justice Sophia A. B. Akuffo in 2018.
In Section 73 of Act 459, it is provided that:
Section 73—Reconciliation in Criminal Cases.
Any court, with criminal jurisdiction may promote reconciliation, encourage and facilitate a settlement in an amicable manner of any offence not amounting to felony and not aggravated in degree, on payment cases of compensation or on other terms approved by the court before which the case is tried, and may during the pendency of the negotiations for a settlement stay the proceeding for a reasonable time and in the event of a settlement being effected shall dismiss the case and discharge the accused person.
It is essential to note that before the court can facilitate and encourage an out-of-court settlement of an offence, the offence must not be a felony. Offences that amount to a felony are manslaughter, murder, abetment of suicide, causing harm with the use of an offensive weapon, rape, defilement, and unnatural carnal knowledge, among others.
In Section 64 of the Alternative Dispute Resolution Act, 2010 (Act 798) , it is also provided that:
A court before which an action is pending may at any stage in the proceedings, if it is of the view that mediation will facilitate the resolution of the matter or a part of the matter in dispute, refer the matter or that part of the matter to mediation.
Finally, in a Practice Direction on Disclosures and Case Management in Criminal Proceedings 2018 , it was provided that:
At the Case Management Conference, first of all, the Judge or Magistrate must consider whether the offence in question is amenable to amicable settlement having regard to the provisions of section 1 of the Alternative Dispute Resolution Act, 2010 (Act 798) and section 73 of the Courts Act, 1993 (Act 459), and if it is, then the Judge or Magistrate may refer the case for Alternative Dispute Resolution (ADR) and adjourn for the outcome of the amicable settlement, subject to the provisions of Section 169 (2) of Act 30.
If the court so adjourns a court for resolution via ADR, Section 169(2) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) provides that the adjournment shall not be more than thirty clear days.
Common Programs Associated with Restorative Justice:
There are several ways of achieving the goals of restorative justice. These are:
1. Family group conferences: This is a conference consisting of the victim, the offender, and their families. It recognises that families are also affected by an offence.
2. Victim-impact panels: These are forums for victims to explain the real-world impact of crime to offenders. Here the offenders are often not the offenders that caused harm to the victims giving the explanation.
3. Victim-offender mediation or victim-offender dialogue: Here, victims are given the opportunity to meet their offenders in a safe and structured setting for the purpose of dialogue, negotiation, and problem solving.
4. Circle sentencing: Here, victims, offenders, family and friends of both the victim and the offender, and justice and social service personnel discuss the offence and its impacts, and collectively determine the appropriate punishment to give to the offender.
5. Community reparative boards: This program involves community members in the restorative justice process. Their focus is to repair relations and restore harmony within the community.
These processes will be discussed extensively in subsequent notes.