Mrs. Maathai, one of the most famous and widely respected women on the continent, wore many hats — environmentalist, feminist, politician, anti-corruption campaigner, human rights advocate, protester and head of the Green Belt Movement she founded. She was as comfortable in the gritty streets of Nairobi’s slums or the muddy hillsides of central Kenya as she was hobnobbing with heads of state. In 2004, she won the Nobel Peace Prize, with the Nobel committee citing “her contribution to sustainable development, democracy and peace.” It was a moment of immense pride in Kenya and across Africa.

Dr. Maathai was scheduled to deliver a lecture entitled “Environment, Democracy & Peace — A Critical Link” at the University of Nebraska in just a couple of days, on September 28, as part of our E.N. Thompson Forum; the Human Rights and Humanitarian Affairs Program was a co-sponsor of the event and it’s no overstatement that her visit would have been the highlight of our programming year.

If you don’t know much about Dr. Maathai and her work, a quick internet search will bring up a great many interesting articles.

The International Criminal Court (ICC) has issued summons for six Kenyans accused of masterminding the country’s worst post-election violence that claimed up to 1,500 lives, to appear before the court on April 7.

The suspects, who have come to be referred to as the Ocampo Six, senior allies of President Mwai Kibaki and his rival Raila Odinga, were ordered to make initial appearances in two separate hearings before the court on that date, four months after the ICC prosecutor Luis Moreno-Ocampo named them as suspects.

The Forum for Peacebuilding Ethics has an interesting short article (with two shorter comment pieces) on transitional justice that looks at Kenya and Sudan. The focus, in particular, is on the ethical dilemma between the twin objectives of peace and justice (which so often seem to be set in opposition).

As the authors, who are both at the Kofi Annan International Peacekeeping Training Centre, note:

the application of restorative justice at the expense of retributive justice in African societies is a major source of ethical clash with western values which are often implicit in most universal norms and practices. In the African context, most countries and societies would prefer restorative processes such as truth and reconciliation and by-partisan dialogue and mediation efforts that focus on humanitarian values in the context of compassion, forgiveness and reconciliation. This is in sharp contrast with international practices of retributive justice which are seen in mechanisms such as the International Criminal Court (ICC), the criminal tribunals and the special courts which are all backed by the UN.

In effect, the argument is that peace and justice have a difficult time coexisting in post-conflict situations, that elites tend to choose one or the other and then try to sell that choice to the populace. And, the authors claim, African countries are prone to adopt a restorative framework — which ideally yields peace — whereas the international community’s focus — which ideally yields justice — is more retributive in nature.

Thus, in African post-conflict societies, there turns out to be precious little justice and, in cases that see a resumption of conflict, no peace to make the absence of justice worthwhile.

Here is the authors’ conclusion:

In both Sudan and Kenyan [sic], it appears that the pursuit of peace often compromises justice … If the interest is to restore peace in the country, then the issue of justice will be compromised. But one must also be prepared to suffer the full consequences of future insecurity and conflict if such restorative approaches to justice do not ensure peace in the long run.

I disagree with the authors about whether restorative approaches amount to a rejection of justice. Instead, it’s a different understanding of what is entailed by the idea of doing justice. As Howard Zehr argues, “If crime harms people, justice should be a search to make things right to and between people … If crime is injury, justice will repair injuries and promote healing. Acts of restoration — not further harm — will counterbalance the harm of crime.”

The most common complaint — echoed by the authors above — is that restorative approaches don’t amount to justice at all because they amount to little more than an easy way out or a slap on the wrist for offenders. This is a narrow view of justice, and of crime and punishment, one that equates justice almost entirely with prison sentences. But, of course, it’s true — as David Cayley notes — that restorative practices “seek noncustodial settlements; they allow both the offender and the victim much more initiative; they are oriented more to peace-making than punishment; and they try to mobilize the capacities of families, friends, and local communities in correcting offenders and holding them accountable.”

We have come to associate trials and prison sentences with accountability for offenders and justice for victims. Quite at odds with this conception, however, is the fact that most offenders — despite serving prison time — do not accept responsibility for the harm they have caused; because they are typically advised not to admit guilt at any stage or even to testify at trial, offenders are often left with the impression that justice is something that is done to them — rather than a process in which they actively participate — and they are then free to blame the system for their incarceration.

Even though they do not result in prison sentences, then, restorative processes shouldn’t be seen as freeing offenders from the burden of accountability. Indeed, I want to argue (as I have here) that just the opposite might actually be the case; depending on how it is undertaken, of course, restorative justice has the potential to achieve a good deal more (peace and justice) for offenders and for victims — even in distinctly challenging post-conflict societies — than the retributive approaches with which we are more familiar and thus more comfortable.

The forum is here (HT: Patrice McMahon).

An article of mine on restorative justice, from which some of the above is drawn, is here.