At the centre of this controversy is the question of justice and whether it was seen to be done. However this is only part of the wider discussions relating to allegations that British Petroleum Company wanted oil concessions in Libya and other political undertones. This melee’ has been referred to by the Daily Telegraph’s David Winnett as the oil for terrorists scandal in his July 20th 2010 article.
My attention is also drawn to a couple of years back, when I interviewed a middle aged woman who had been convicted and sentenced to death for allegedly hacking her husband to death. The lady admitted that she had done the dastardly deed in self defense although the courts of law thought otherwise. She then mentioned that she was more concerned about the welfare of her children, who were allegedly thrown out by her husband’s family into the streets and were reportedly scavenging for food in the city dumpsters. I did not venture to discover the authenticity of her story although it got me thinking about the whole concept of the multifaceted way in which people pay the price for what they have done.
In England, one Ian Huntley who is serving life sentence for killing school girls Holly Well s and Jessica Chapman aged 10 had his throat slashed with a razor blade in the prison where he is serving a life sentence. The 36 year old man is now suing the Prison service for over 100,000 pounds. 20,000 pounds for injuries and 60,000 pounds as punitive damages. Additionally, he is seeking 15000 pounds through the Criminal Injuries Compensation Authority. It should be noted that the families of the girls he slew in 2002 received 11000 pounds each for his actions.
Recently I asked a close acquaintance what justice was and with a near sneer, the response I got was that justice does not exist. The recent bombings in Kampala city which took place while middle age Ugandans were enjoying the final whistle of arguably the best world cup final hosted by south Africa further challenged me. The pictures of young men and women, probably in their late twenties, having recently gained their independence from their parents and enjoying their new found freedom at Kyadondo Rugby Club and Kabalagala Ethiopian restaurant got me wondering- What enemy was so enraged by this behavior? Were they really collateral damage? Will attacking the Al Shabaab hideouts in Somalia like the bombarding of Afghanistan and Iraq serve as “just desserts” for the dead, dying and injured? Is “compensation” of the said victims by the government of Uganda an adequate conclusion to this matter? In essence, is it justice?
With hindsight these sets of facts beg the question, was justice served and if so, whose justice was served?
Back to the case of the convicted wife I do suspect that many people will support the role of the state in punishing this unfortunate lady for what she did to her husband and I guess the arguments about taking the law into one’s own hands have been mentioned so many times that I need not get into the same discussion. The proponents for theories of punishment will certainly have a field day arguing to and fro why she needs to be punished. However, the truth (depending on what our interpretation of that is) remains that only the dead man and his now widowed wife know what happened on that fateful evening.
The question that I am now asking is whether it makes sense for the children of these two unfortunate parents to not only be deprived of a mother, but also neglected by the punishing party (read the state and immediate family) and cast into the dumpsters. The question that begs to be asked is whether such a punishment model is the best way forward in the circumstances. The kids will probably steal in order to survive or get involved in other forms of crimes – be it prostitution, drug trafficking, simple or armed robbery. That is if they do not get recruited into inhaling petroleum products in order to “forget their misery” and create more misery for law enforcement officers in future. As such there will be a rethinking of our criminal justice system which has taken what I refer to as the “well trodden path” in the pursuit of justice – this is retribution which at the end does not seem to achieve the real ends of justice.
Let us look at the Al Shabaab bombings in Kampala. The media is currently awash with stories of how the bombings could have occurred and how lax our security systems currently are. Those responsible have either blamed the organizers of the social gatherings for not being security conscious or struggled to put the blame on other technicalities. However the purpose of this article is not to levy blame however noble such a duty might be, but rather to ask the question – what would justice be for the victims and victim’s families?
What then is Justice? What should a meal of justice entail for a people who are starved of it? For a nation or a tribe? For a victim? What would the main course of such meal entail? Allow me to suggest that such a term has been misinterpreted by many. Some call retribution justice while others consider deterrence or rehabilitation as justice. I wish to suggest that these are merely different faces of justice and are not ends to justice in themselves. For some, deterrence of further crime should take priority while for others it is either to rehabilitate the offender or for retribution.
With regard to the Kampala bombings, I opine that, an apology from the organizers of these entertainment events, as well as from those who are given the honorable duty to detect and prevent crime should be the first attempt at “justice”. The effect of such an act is far reaching for the grieving families as was seen in Australia when former Prime Minister Kevin Rudd apologized for the former governments’ policies of taking away children of mixed race. The repercussions of the truth and reconciliation commission which largely brought to light a different concept of justice – the justice from Archbishop Desmond Tutu’s promotion of the concept ubuntuism-showed that forgiveness does have a unique part it plays in this “meal” of justice. This forgiveness makes the rest of the meal palatable. It is like the sauce – the accompanying stew. This concept of justice is mainly promoted in many indigenous communities of the world. It is seen expressed in various ways in New Zealand, Australia, Africa and other places. In Uganda, we see processes like Gomo Tong, Nyono Tong Gweno, Mato Oput in northern Uganda. It ensues that society can continue to live together in spite of the hardships that it has undergone. The confessions (if you call it that) by Winnie Mandela compared to the non-cooperation of the “old crocodile” P.K Botha are both telling in the incompleteness of this process and begs another ingredient into this meal.
Reparations?
I appreciate the fact that reparations have been promised to the victims of the 7/11 Kampala bombings. The International Criminal Court has also set up a fund for victims of mass atrocities, crimes against humanity and war crimes. However, it has been argued that this can only be fully appreciated and accepted after the perpetrators of these crimes are “brought to book”. As to what this means is a subject of debate by many criminologists, penologists and law makers worldwide. The concept of the “generally accepted view” of justice is also problematic since it depends of who is interviewed and what kind of exposure such interviewees have had. The perception as proposed by Rawls in his book “A Theory of Justice” that we can imagine a veil of ignorance/ clean plate when we consider questions of justice is discounted by Hans-Georg Gadamer's philosophical hermeneutics who argues that every act of interpretation/understanding is situated. History and tradition, Gadamer stresses, are always at work in understanding. As a result, any theory, according to which people, behind a "veil of ignorance", would be in a position to imagine a just society is unrealistic. Understanding inevitably takes place in a particular place and at a particular time. There is no overarching standpoint. As such therefore, to assume the reparations should be the highest or lowest consideration for the justice buffet is erroneous. I postulate that any vitamin-rich food in this diet of justice would be the reparations that restores the loss suffered especially if it is of an economic kind
Retribution ?
Equating retribution with justice has been a common concept used by many like Tim Allen in his book “Trial Justice.” For the proponents of this theory, giving the accused person his or her “just desserts” is sufficient to qualify as “justice.” The Hammurabi Code and the Mosaic laws of “an eye for an eye” have been justified as appropriate over the decades in spite of the silent voices of fallible trial systems like those of Jesus Christ, Thomas More, Saddam Hussein and others. The death penalty has been meted out for offences like murder, rape, corruption (in china) and treason. However, as the hanging of Saddam Hussein showed, the death penalty makes murderers of us all. In any case, it has been argued that Saddam Hussein was found guilty even before he was tried. The current trial of Charles Taylor by the Special Court for Sierra Leone will probably return a guilty verdict. The jury is “of course - officially - still out” in spite of the fact that the media has abandoned the requirement for respecting the rules of sub-judice. Turning back to this discourse on retribution, for some, imprisonment and the death penalty have lost their ethical and moral justifications mainly because of constitutional and political concerns coupled with challenges from the world-wide human rights movement- an equally complicated subject that I will reserve for another day.
However, the alternatives like restitution, fines, community service are either nonexistent or too expensive for many states to enforce in spite of the fact that they arguable make more sense for the victims of crime and injustice.
In many instances, people will seek retribution and justify it as the silver bullet for justice. Unfortunately, like in the case of the convicted mother, the children and relatives of the convicted end up suffering and in many cases are scarred for life. As to whether this is a justifiable consequence for punishment of their convicted relative is questionable conclusion.
Many will however agree that retribution does take the cake (if you come from the western world) or is the meat (for the African cultures) of any meal. However, in light of the fact that there are diabetics, vegetarians or probably Hindu visitors in our midst, it is worth considering alternative meals for the various attendees.
Rehabilitation
My visits to Luzira Maximum Prison, first as a young student researcher and then as a practicing advocate revealed to me that the motto of the prison is to inter alia rehabilitate the criminal. The educational programs, collaboration with the Uganda Christian University Mukono as well as carpentry, tailoring and agricultural workshops are aimed at achieving this purpose. The success of some of these trainings is seen by the various stories of men and women who have served their prison terms and gone on to live productive lives. However, some, like one of my former clients who run a successful business before being incarcerated, have not been so lucky and left jail with only the shirt on his back and a bible in a polythene paper bag. Arguably many convicts do get an opportunity to learn a skill in the prison- it may be a better way to commit crime, as one of my clients confided in me, or a new life skill either as a cobbler, tailor or carpenter.
However, it should be noted that in some cases, rehabilitation is confused with education or re-education. This is because a substantial number of convicts have been arrested for flimsy colonial reasons such as being “idle and disorderly” a crime whose justification in the law books today is very hard to maintain as it infringes on the human right to move freely. Further still, the list of derelict convicts is very high because they do not have the monetary power to afford good lawyers, police bond or court bail. This is very obvious when one visits any magistrate court in the rural areas where convicts are either walked for miles to the court rooms or transported on lorries and other non-passenger service vehicles. The majority of accused persons are alleged to have stolen food or trespassed on land. This is not to discount crimes of defilement, rape, murder and bodily harm, many of which are caused by various factors like poverty, alcoholism and drug abuse as analysed by Ugandan Criminologist Tibamanya Mwene Mushanga in his book Criminal homicide in Uganda
a sociological study of violent deaths in Ankole, Kigezi and Toro Districts of Western Uganda.
As such, the song of success attributed to rehabilitation needs to be understood in this context. Rehabilitation should be seen as the seasoning or the salt of this meal of justice. Without it, very few legal practitioners or teachers would proudly claim that justice or the law works.
Deterrence
Nothing easily slips out of the mouth of those I have asked about the purpose of justice than the word “deterrence.” Some have argued that as long as the individual is deterred from committing a crime again, that is justice fulfilled. Better still if other people are deterred from committing the crime again. It is true that the individuals who are either incarcerated or subjected to the death penalty are actually from the crime but the recent incidence in England where over 30,000 people signed up to a face book page in memory of Raul Moat who shot and fatally wounded his former girlfriend and then killed her new lover leaves a lot of question marks regarding the whole aspect of general deterrence. In any case, punishments like the death penalty seem to have hit a snag in effectiveness since the prevalence of fatal stabbings, gang bang shootings, suicide bombers, murders and manslaughters are on the increase and not otherwise.
As such whereas deterrence might be an argument many have used to justify the existence of certain punishments, its ineffectiveness is similar to the relevance of dessert. It is not necessary although it would be good to have it.
Conflict situations
The concept of Justice is complicated further when dealing with conflict situations like in East Timor, South Africa, Northern Uganda, Sierra Leone, Sudan and other similar places. Here, societies have been destroyed by long spells of insurgency, mass atrocity, crimes against humanity like rape, mutilations, slavery. The social fabric has been disorganised, familial roles have been exchanged with fathers and husbands resorting to – like in the case of Uganda-alcoholism, drug abuse and domestic violence and mothers turned into bread winners either as prostitutes or beasts of burden.
Children born under such circumstances and kept in squalid internally displaced people’s camps or abducted by the rebel forces as beasts of burden, slaves, soldiers’ wives or child soldiers themselves have not only lost their childhood but their innocence and families to return to. This is because may are forced to kill their own parents and relatives by hacking them to death with grotesque tools like the hand hoe, machetes, pangas name it. The scenes of sliced lips, ears and nostrils, the pictures of limping and disabled haggard beings living in grass thatched huts that are occasionally torched to the ground during the raids allegedly by the rebels, ignite in us a sense of possible hatred and vengeance that knows no bounds.
We might probably bay for the blood of these allegedly “brute animals” that have done this to society – these beings probably deserve the type of punishment that is recommended by Foucault in his writing Discipline and Punish which begins with a detailed, stomach-turning account of a punishment in the style of the Old Regime:
On 2 March 1757 Damiens the regicide was condemned 'to make the amende honorable before the main door of the Church of Paris,' where he was to be 'taken and conveyed in a cart, wearing nothing but a shirt, holding a torch of burning wax weighing two pounds'; then, 'in the said cart, to the Place de Grève, where, on a scaffold that will be erected there, the flesh will be torn from his breasts, arms, thighs and calves with red-hot pincers, his right hand, holding the knife with which he committed the said parricide, burnt with sulphur, and, on those places where the flesh will be torn away, poured molten lead, boiling oil, burning resin, wax and sulphur melted together and then his body drawn and quartered by four horses and his limbs and body consumed by fire, reduced to ashes and his ashes thrown to the winds.'
Would this be an appropriate punishment? I know many who would agree that it is. However, I doubt the authenticity of this argument based on the above discussion.
This is because we ignore the causes of crime, the purposes of the punishment and the unique circumstances of each case. Take for instance Northern Uganda- the majority of these crimes are committed by young adolescents who have been forced into a rebellion against an enemy they do not apprehend. They are forced to kill their own parents and relatives or tribes mates or clan mates for reasons that they do not understand. Many are indoctrinated and forced to live in fear of being killed if they do not kill. Some video clips on YouTube show that the majority of rebels allegedly killed in Uganda Peoples’ Defense Forces raids are women and children who have probably had no choice in being part of Joseph Kony’s outfit. Does justice for these people really make sense? I doubt it
Let us take the argument further by considering the role of the international criminal court. This court does not carry the death sentence but will probably prescribe long custodial sentences for the convicts. However, the prisons should abide to the minimum human rights standards for the victims. This means the accused persons shall be living fairly comfortable lives save for physical access with the outside world. Compare that with the kind of life Joseph Kony and his commanders are currently living and tell me whether the punishment of the ICC if ever given is not a better option
Lessons from the past?
My discussion therefore begs the question – what then? Well, clearly justice means different things for different people and prescribing one form of justice is not only myopic but also inconsiderate of the cultures, aspirations and values of the peoples of the world. African communities for example, valued societal integrity and cohesion above the individual. Individualised justice – though existent- did not supersede what society demanded. As such, any punishment that compromised or ignored the values of society was looked down upon. It is for such reason that punishments such as expulsion from the community were valued more than mere floggings and or prison terms- if ever they existed. In many cases, compensation and restitution were used to settle scores between families, clans and tribes. I do not wish to over glorify these societies of old because they had certain punishments like death for virginity loss that I obviously do not agree with. However, the option for making the relatives of the deceased in a better place or restoring them to the position they enjoyed but for the act of the accused, seems to me a better form of justice which not only inconveniences the culprit but also acts as a double edged sword that helps heal society.
Of course this is not to say that an evil deed should not go unpunished as is the case with Buddhism where an evil deed shall be punished either in this life or the next. Such is the variety that needs to be considered.
Holistic Justice?
What then would be a well balanced and tasty meal of justice served in any society? The above discussion shows that there are clearly huge issues with what people consider to be justice or its purposes. Clearly no system of justice is a silver bullet that answers the call for justice. Instead there is need to consider all these aspects as being part and parcel of the holistic picture. A meal needs all the trimmings: the starters, the main course and the dessert for some or a plate full of carbohydrates, vitamins and sauce for others. It is impossible for us to push one description of justice as being the ‘be all and end’ all. Such a view of consideration would in my opinion be myopic and will obviously fail.
The writer is an attorney and lecturer-at-law
druhweza@gmail.com
I know this is a long one but will appreciate your comments ....
ReplyDelete(In response to Shiela)
ReplyDeleteThank you for reading this and commenting.
The idea i was trying to propound is that '' there are clearly huge issues with what people consider to be justice or its purposes. Clearly no system of justice is a silver bullet that answers the call for justice.'' This means we can not look at only prosecution leading to imprisonment as the definition of justice. Rather, we should ''consider all these (various) aspects of justice as being part and parcel of the holistic picture.'' For the woman who has killed her husband for defiling their daughter, I see no need for imprisonment since her acts were surely provoked -and provocation is a recognised defence- In any case why subject the defiled girl (or boy) to double jeopardy of losing both parents?-
On the other hand Kakama's killers should be punished for their dastardly deed - which punishment in my view should deter much as it retributes. However, in case the parents prefer a compensatory punishment in form of monetary or other form, that should probably be given more weight. Mere imprisonment is not enough. I would suggest that these accused persons, once convicted should be made to work in order to pay for the state resources used - similar to community service.
That is why i suggested that '(this) meal (of justice) needs all the trimmings: the starters, the main course and the dessert for some or a plate full of carbohydrates, vitamins and sauce for others.
Therefore, I concluded by stating that '...it is impossible for us to push one description of justice as being the ‘be all and end’ all. Such a view of consideration would in my opinion be myopic and will obviously fail.'
What are you further thoughts??