UPDATE: A Comparative Analysis of Restorative Justice Practices in Africa
By Julena Jumbe Gabagambi
Julena Jumbe Gabagambi is a Lecturer in Law at the University of Iringa, Tanzania. She holds a diploma in Law, Bachelor of Laws and an L.L.M. in Criminal Law and Criminal Justice from Mzumbe University, Tumaini University Iringa University College and the University of Birmingham (UK) respectively. She is currently a Ph.D. candidate at the Open University of Tanzania focusing her research on the issues of restorative justice. She has worked as a Legal Officer with the National Environment Management Council and the National Organization for Legal Assistance. In addition, she has worked with the United Nations High Commissioner for Refugees as a Repatriation Assistant. She teaches Criminal Law and Procedure, Transnational Criminal Law, Family Law, Law for Community Development, Child Law, and National Protection of Human Rights in Tanzania.
Published September/October 2020
- 1. Introduction
- 2. Overview of the Conversations About Restorative Justice in the Literature
- 3. Restorative Justice Praxis in Selected Countries in Africa
- 4. The Effects of the Western Retributive and Adversarial Justice System on the African Rest
- 5. Challenges of the Adversarial Justice System in African Countries
- 6. Conclusion and Recommendations
- 7. Selected Bibliography
Restorative justice, as practiced in many African communities, is a conflict resolution paradigm that brings together the victims, offenders, and community members to address and resolve a crime or a dispute. It aims at restoration, reparation, reintegration, and community participation in tackling crime, disputes, and related problems that affect them (Doolin, 2007).
Restoration takes many forms, such as compensation, reparation or apology, and helps mend broken relationships. This makes perfect sense because African peoples tend to live communally and abhor anything that could strain relationships, disconnect an individual or family from the community, and paralyze their social relationships (Ladan, 2013).
This paper seeks to understand whether the restorative justice (hereinafter, RJ) paradigms or processes for handling criminal matters and conflict in many pre-colonial African communities are relevant to dealing with crime and conflict in African countries in the 21st century. Using qualitative data obtained through desk reviews of existing literature, it compares and contrasts the applications, successes, and challenges of RJ practices in six African countries. Five of the countries – South Africa, Kenya, Uganda, Nigeria, and Ghana – were former British colonies and protectorates, while the sixth country, Rwanda, was a Belgian colony. The countries were purposefully sampled or selected based on their history of colonization, post-independence experience, and attempts at reviving traditional justice mechanisms for dispute resolution because of the limitations of the adversarial justice system they inherited from former colonial masters.
The paper argues that restorative justice is a paradigm that was in use in Africa prior to the coming of colonialists and should be revived by African countries because it promotes healing and restores relationships between offenders, victims, and community much better than the western adversarial system. This paper argues with Omale (2006) that restorative justice can work much better in the 21st century in Africa than court proceedings. Crucially, the retributive justice system and culture, unlike restorative justice paradigm, is more likely to get people into more trouble than getting them out of trouble (Omale, 2006). Therefore, a restorative justice paradigm is ideal for Africa because it would reduce dependence on external aid, promote active participation by local communities, and would contribute to the development of African’s own system of dispute or conflict resolution.
The paper is divided into six sections. This introductory section offers an overview of RJ. Section two compares and contrasts the use of RJ in some selected African countries. Section three examines the effects of the Western and colonial imposed adversarial justice system on the traditional justice mechanisms. In section four, the challenges of the current adversarial criminal justice system in African countries are identified and discussed. The last section concludes the discussions in the paper and offers some recommendations.
Restorative justice is not a new phenomenon because it used to be practiced in Africa long before the advent of the colonization of African territories by Western European powers. Its effectiveness in the adopted Western criminal justice system, however, is no longer as it used to be (Wyk, 2016). Restorative justice is gaining popularity again, however. Llwelyn and Howse (2002) state that it is a return to the old ways of resolving conflicts in many parts of the world. Other studies assert that the roots of restorative justice are deep in Africa, and indeed in many parts of the world, regardless of the term used to describe it (Mangena, 2011).
Indeed, in Tanzania, for example, restorative justice has been practiced for millennia. The Kinga of Southern Tanzania, for instance, resolved conflict amongst its members through restorative justice processes. Thus, whenever a conflict occurred either between family members or between families of a clan, the community concerned called for a meeting to reconcile the parties. Community members would sit in circles around the fire place, a kind of court setting known as Lugono, and then a complainant would narrate the incident or present their account of what happened and the defendant or defendants responded to the accusations and defended him/herself or themselves (Ilomo, 2013). The reconciliation of the parties is sealed or solemnized with a sharing, from the same pot, of some alcohol, locally known as ‘ukupelanila ulupelo’, and eating roasted meat, termed as okukatelanila inyama. The okukatelanila inyama process involved cutting a piece of roasted meat held by the disputants and each eating a piece followed by a blowing of special medicine into one’s face known as ‘ukupulilanila untuguva’ as a symbol of reconciliation (Ilomo, 2013).
The practice of resolving conflict and reconciling parties to it differed and depended on the gravity of the wrong committed and the number of people involved. For a minor conflict, for example, one member insulting another, the parties to the conflict could attempt to resolve it themselves. But grave offences or serious disputes required the involvement of clan members and the community. This usually happened when members of the community, sitting around the fireplace, and listening attentively to the parties, interrogated them and helped them get to the bottom of the problem and bring out the truth. Getting to the truth, including understanding the root causes of the dispute, and not how one convinced the members of the community of his or her innocence, as practiced in the conventional justice system is one of the main distinguishing features of the restorative justice system. The search for truth had more to do with lessons learnt, understanding the causes and advising the parties and community how to avoid similar problems in the future (Ilomo, 2013).
The offender, having told the truth, had to voluntarily confess or acknowledge responsibility for their words, actions, or failures to act that caused harm or injury to the victim and his or her family; he or she also had to show remorse for his or her acts. When the truth is known and acknowledged and responsibility owned, reconciliation follows due course and the broken relationship is repaired and restored. Thus, reconciliation is at the centre of the restorative justice model and cannot happen before the offender, victim and members of the community hear them out and establish the truth. Indeed, if it happened that a victim of a crime or a conflict or dispute suffered further harm or suffering before mending the broken relationship through the restorative justice system because of the recalcitrant behaviour of the community member suspected to be in the wrong or is the offender, the community members cast the blame on the suspect; hence communities had to resolve conflicts quickly (Ilomo, 2013).
Similarly, in Nigeria, where restorative justice has been practiced amongst many communities, Omale (2006) also addresses the importance of reconciliation and how it is solemnized:
Councils of Elders to be sure that genuine reconciliation has been achieved after dispute mediation, both parties may be expected to eat from the same bowl, (drink palm wine, burukutu or local gin from the same cup and/or break and eat kola-nuts).
It was due to the wisdom of African communities that the social fabric of their people was soundly built on truth, understanding the root causes of problems in the community, and reconciliation. Uncovering the truth about what happened and why, they understood, required the involvement of all members of the community in frank and open discussions about a particular wrong, problem, conflict or a set of issues or conflicts. Thus, the African communities’ mechanisms for handling conflicts allowed ordinary people to participate in and address or discuss disputes and crimes that affected them freely without interference from a centralized and far removed authority of a State. By contrast, however, in post-independence African countries, State organs now handle conflicts and disputes through an adversarial and retributive process, especially in criminal justice. While these foreign processes of justice are not invidious per se, they are prone to inordinate delays, especially in criminal trials, where procuring State witnesses is a serious challenge (Omale, 2006).
Indeed, most post-independence African countries have relied on the laws and the legal systems that their colonial masters introduced, but these alien systems have not helped them in solving the many conflicts that have bedevilled them. This has generated interest among some scholars and researchers in revisiting African traditional practices and their place in a post-colonial State (Ndiaye, 2012). The indigenous justice systems, while not perfect, should not be replaced with western justice models. To reject indigenous justice systems wholesale not only leads to loss of the cultural practices of the indigenous population but also perpetuates the denigration of African ideas and values for being inferior to western values (Ndima, 2015).
Several scholars and researchers have not only defended restorative justice as practiced in many African communities but also recognised its relevance to the administration of justice in African countries in the 21st century. Kariuki, for example, asserts that the traditional African justice system deserves recognition because it helps in maintaining the rule of law and an assured and timely delivery of justice, and advances the community’s economy (Estelle, 2011).
Perry challenges the stereotypes and comparisons often made between African traditional justice systems and western justice systems, arguing that the western justice systems were meant to be applied in their own countries and not in Africa. Indeed, he contends that one cannot compare apples with oranges. See Josh Perry, You Cannot Compare Apples to Oranges: Ubushingantahe vs. Criminal Justice, Africa Faith and Justice Network (June 18, 2010). In some African countries, such as Burundi, for example, the traditional justice systems or methods of handling conflict have worked pretty well and he cites the example of the Ubushingantahe that he believes has to a large extent succeeded in resolving conflicts in Burundi. Ubushingantahe is the plural for gushinga, which means to plant or to fix, and intahe means a stick, so Ubushingantahe connotes the person who plants a stick on the ground. The practice indicates that when deciding on the matter the one who pronounces the decision fixes the stick on the ground as a sign of insisting the importance of the given decision. Parties normally take oaths before the trial begins, and when the decision is reached the parties to the conflict offer banana or sorghum beer to the bashingatahe, as a recognition of their role, and other members drink to celebrate the restoration of relationship. However, women are not allowed to make decisions; only men do. Nindorera states that women were not involved in decision making because by then it was tested and observed that they cannot keep secrets, which was and still is the requirement in any justice administration.
Ladan (2013) observes that restorative justice encourages and promotes the reintegration of an offender into the community. Reintegration is important because it facilitates the acceptance of the offender into the fold of the community and acceptance restores the offender’s sense of belonging and healing. Failure to reintegrate offenders has been shown to result, in most cases, into recidivism (Ladan, 2013).
Christie (1977) argues that the State has “stolen” conflict resolution capabilities from the community, i.e. the State has usurped the role that community justice systems used to play in resolving conflicts and administering justice. He suggests that conflicts should be solved by the main stakeholders involved in dealing with criminal behaviour in the community (Christie, 1977). Boudreau contends that crime affects not only the victim but also one’s relations and thus their inclusion in the process of resolving and solving the problem builds up confidence in the system and a realization that their participation in the justice system is valued by the State.
The community is a place where offenders, victims, and other members live; hence, people who know the offender are community members and they are better placed to reconcile and reintegrate the offender by making him or her accountable for his or her criminal acts or conduct (Rossner and Bruce, 2016). It is argued that the modern State, in maintaining community safety, requires partners against crime. The community members, are the main stakeholders in the criminal justice system and should be key partners in the fight against crime.. Joireman argues that in pre-colonial Africa, all states and peoples had rules on how to settle disputes in their localities. When colonialists came, however, they introduced their laws and their conventional systems of justice and attempted or purported to preserve the local community customs and law. In practice, the imposed colonial laws, whether common or civil law or statutes, became the law of the land and gradually replaced the customary laws of the communities under occupation. Having attained independence, the colonized countries faced the dilemma of which laws to follow, either retain the laws imposed by the colonial masters or revert to their customary laws (Joireman, 2006).
Sadly, most African countries are still resolving the dilemma on which laws to follow after independence by retaining the colonial laws and the retributive justice system. In doing so, they failed to consider the policies that are appropriate to the development of Africa’s peoples and their socio-economic needs (Coldham, 2000:218).
Rwanda, a former colony of Germany from 1894 to 1918, and then Belgium from 1918 to 1962, became independent in 1962. It adopted the civil law legal system of its former colonial masters. During the colonial era, however, the customary laws of the communities were only applicable to those communities and to date continues to be part of the current system.
After the genocide in 1994, Rwanda sought ways of holding accountable those responsible for the genocide and ending conflicts between its people. In the context of the thousands, if not millions, of suspects involved in the genocide and the limited capacity of the criminal justice system it had inherited from its colonial masters, Rwanda adopted the traditional mechanism of justice, the Gacaca, for the task at hand. Since the Hutu and Tutsi shared the same culture, the Gacaca process would be familiar to all the parties involved, namely the accused, the victims, and members of the community, and the process could heal the wounds of genocide (Costelo, 2016).
The Gacaca proceedings, unlike the criminal proceedings in the adversarial criminal justice system, fostered an environment that encouraged offenders to accept responsibility for their role in the genocide and sought forgiveness from their victims. The Gacaca processes are believed to have succeeded in resolving close to two million cases in Rwanda. The International Criminal Tribunal for Rwanda (ICTR), based in Arusha, Tanzania, by contrast, successfully handled only 100 cases.
Oyeniyi argues that the court system prosecutions do not bring healing to the parties involved even in cases where the offender is jailed; instead, offenders might believe that society owes them nothing (Oyeniyi, 2017). In the restorative justice systems, such as the Gacaca process, however, there is dialogue between the offender and victim and this helps in putting the past behind them because it unpacks the truth of what happened and why it happened, and enables future generations to avoid making similar mistakes (Lauren, 2014).
Not everyone agrees that restorative justice mechanisms, such as the Gacaca process, in which truth-telling is said to bring about healing, actually leads to healing for both victims and offenders. Brounéus, for example, argues that assumptions or claims that truth-telling brings healing are not entirely accurate. From her research in Rwanda, she claims that some interviewees stated that truth-telling did not bring psychological healing to all; others remained depressed after having told the truth. She thus concludes that truth does not always heal (Brounéus, K. 2010).
While it is possible that through the Gacaca process some offenders and victims may not have fully recovered and healed from the effects of the horrible things that they committed or happened to them during the genocide in Rwanda, the overall significance of the Gacaca process in contributing to resolving conflict and contributing to peaceful co-existence amongst Rwandans should not be discounted. Indeed, no justice system is perfect or can be considered to be fair to everyone; even the much vouched Western justice system that is allegedly superior to African restorative justice systems, has its own flaws. But on the balance, and given the enormity of the challenge that Rwandans faced after the genocide, in all fairness, it can be asserted, without fear of contradiction, that the Gacaca process contributed to healing and reconciliation between Rwanda’s main ethnic communities, the Hutu, Tutsi, and Batwa.
In addition to the Gacaca process, Rwanda has another justice system: the abunzi mediation process. Abunzi in the local language means “those who reconcile.” The abunzi mediation process brings together the parties to a dispute and members of the community to amicably resolve it. The abunzi mediation process is a restorative justice mechanism that was formally legalised in 2006 under Organic Law (No. 31/2006). This law requires all disputes to begin from the abunzi before taking them to the courts of law. The abunzi mediation process follows community custom, despite it being legalised; parties are encouraged to reach mutually agreed decisions. The members of the community are not, however, compelled to attend. The abunzi approach to dispute settlement or resolution has been shown to be handling many cases compared to the normal court system. It is, however, prone to some challenges, such as lobbying by the elite and the participation of the State in the process. These have weakened the working of the abunzi so much so that it is no longer the same approach as it used to be during the pre-colonial era (Mutisi, M, 2012).
South Africa, like Rwanda, was colonised by two different western European colonial powers: Holland, from 1652 to 1815, and Britain, from 1815 to 1961. The Dutch started the conquest and colonisation of the territories that now make up South Africa in 1652 but were ousted by the British by 1815. Both the Dutch and the British imported their legal systems to South Africa, albeit with some modifications, and displaced the role of the customs, laws, and the legal system of the indigenous communities. Thus, today, South Africa has a mixed legal system, comprising the legal system of the Dutch, the British, and customary law of the indigenous Africans.
Before the coming of colonialists to South Africa, the different ethnic communities or nations had their own customs, laws and legal systems for dealing with crime, conflict and other social problems or issues. Their dispute settlement methods focused on reconciling the parties to the conflict. This meant that the justice processes concentrated on restoring the raptured relations between parties, not punishment of offenders. The restoration of raptured or broken relationships remained the goal even in circumstances where the defendant was ordered to pay compensation; the payment of compensation was a sign of accepting responsibility but not meant to empty the pockets of the wrongdoer.
In pre-colonial South Africa, different communities had different approaches or mechanisms of restorative justice. Among the Xhosa, for instance, the King or the Chief heard murder cases because he was believed to be the victim or the one who suffers the injury. The traditional counsellor stated and showed the pros and cons of the case. If the chief disagrees with the decision of the counsel, he will give an alternative decision, which, when accepted, becomes the decision of the court (Inkundla). In some cases, a compromise is reached and thereafter a modified judgment is pronounced. Thus, the King cannot make his own decisions without the involvement of other community members because for the Xhosa it is stated that a Chief is a Chief by the grace of his tribe. In murder cases, the Chief orders a certain number of cattle to be paid and some are paid to him because one of his followers is gone (Masina, 2000).
In 1996, however, customary law in South Africa was given recognition and constitutional status. This was a welcome change because black South Africans, despite years of repression, continued to use their customs and laws and traditional mechanism for dispute resolution (Rautenbach, 2015). Moreover, the judicial and justice system that the British imposed on them was not only expensive but also alien to them in many respects, especially its focus on the individual, at the expense of the larger community. The majority of South African people, the blacks, by contrast, believed in Ubuntu, namely, the idea or philosophyof a common humanity and community in which everyone is his or her brother’s or sister’s keeper, whether stranger or not. Thus, within this Ubuntu philosophy, the end of justice must be to restore the wrong-doer to a status that enables him or her to value others and desist from harming or injuring them. From this philosophical approach to restorative justice, the community understood that when one of its members commits an offence, the whole community suffers and, therefore, instead of marginalizing the offender, the community should work together to rehabilitate and reintegrate the offender (Rautenbach, 2015).
The importance of a community ethos fostered through restorative justice and the consequences of eroding such ethos on the community is not lost on some leaders in South Africa. Indeed, some leaders in South Africa claim that the increasing moral degeneration in the country, among other reasons, is attributable to people no longer seeing one another as one community and have called on measures to be put in place to revive the communal life-styles that Africans used to live (Mabovula, N.2011:46). The communal life styles, one would argue, include the use of restorative justice in resolving conflicts in African countries. Indeed, South Africa has taken steps of reviving the restorative justice paradigm and some people who were charged with several offences were in the end ordered to pay compensation to the victims and to ask for forgiveness. The legal profession in South Africa supports restorative justice and its usage is currently accepted in the criminal justice system (Skelton and Batley, 2008).
Furthermore, after the end of apartheid, South Africa enacted the Promotion of National Unity and Reconciliation Act (hereinafter, the PNURA, 1995), which instituted a Truth and Reconciliation Commission to address the crimes of apartheid and bring healing to the country. The mandate of the Truth and Reconciliation Commission (hereinafter, the TRC), included, among other things, investigating and bringing out the truth about the gross violations of human rights under the apartheid regime from 1960 to 1994. The TRC was also mandated to finding the victims of the apartheid regime’s human rights violations and granting amnesty to offenders who fully confessed to the crimes they committed under and in the name of the apartheid regimes and helping them to be accepted back in the South African community. The victims and community members were part of the process to ensure that there was healing. The TRC drew inspiration and guidance from the Ubuntu philosophy, which, literally translated, means you become human because of other human beings (no man is an island).
Despite the criticism of the TRC, Varushka maintains that the truth telling process that it handled helped communities to get the truth about what happened and this truth helped bring inner peace. Varushka further maintains that despite the difficulties that the TRC went through it managed to uncover the truth of the matter that no courts of law could have. Moreover, the TRC believe that healing comes after knowing the truth. The former United Nations office of the High Commissioner for Human Rights reiterates that amnesty does not bar a victim from searching for the truth because it is both his or her right and the road towards the promotion and protection of human rights. The statement was made as an insistence that the fact that amnesty can be granted, yet those who violate rules of war under customary law should be taken to court for justice to be done to the victims of such violations.
Bwireobserves that Kenya had a restorative justice system before the coming of colonialists. He points out that the aim of restorative justice was to maintain relationships, which in essence, were a foundation of the community.
The pre-eminent role of restorative justice and other customs that regulated life and relationships in African communities was, however, disrupted and overthrown with the coming of colonialists in Kenya. The colonial powers imposed their own laws and legal systems onto the existing African legal order. Although Africans were allowed to continue using customary law, it was as an inferior legal system to the British common law system, which they had made the main legal system of the colony. The colonial powers in Kenya insisted on the use of the common law in almost all matters, except those considered to fall in the realm of native custom; this was the case in all other British African colonies. After independence, Kenya maintained the western legal system. The British courts prior to Kenya’s independence were meant for the British only but after independence even Kenyans were allowed to sue or be sued in such courts (Joireman, 2006).
In this context, it is not surprising that restorative justice processes in Kenya have not fully become part of the legal system because the 2010 Kenyan constitution has maintained the repugnancy clause which in essence considers customary laws to be weak compared to the western laws (Bwire, 2019), unlike in South Africa which recognizes traditional law in the constitution. Some communities have continued to use restorative justice processes in Kenya – despite it not being incorporated into the Kenyan legal system – in order to address various forms of conflicts, including land-related conflicts. It is submitted that the increasing cases of land disputes in Kenya could be easily settled if the indigenous way of solving conflicts, were to be resorted to instead of the formal court procedures, which to this day remain alien and incomprehensible to most rural and even urban communities. The case for using restorative justice mechanisms to resolve land disputes in Kenya is even made stronger because of the communal types of land ownership practiced in African communities; indeed, private land ownership in the form of leaseholds and freeholds is foreign to most communities in Kenya (N'getich, 2016).
Most of the pastoralist communities in Kenya tend to resolve their conflicts communally without the involvement of the State because they are still bound with kingship and communal ties which they would not want to have violated by other organs. The pre-colonial Agikuyu society handled conflicts with the use of the family, clan or council of elders depending on the type of conflict. For a minor conflict at the household level, the concerned family was responsible; where the family failed to handle, the clan leader took up the task; those of a serious nature were handled by council elders. Emphasis was on amicable settlement. Respected elders could speak and pass judgment on a case.
Justice administration was manned by council elders. Disputes were handled in public and anyone could attend and give their opinion on the matter. The disputants were normally required to bring a goat which was slaughtered, cooked and eaten at the time of delivering a judgment. Most litigations were concluded with compensation, but habitual offenders of serious crimes were publicly killed by the people, whereby people would tie banana leaves around the offender’s neck and set them on fire or could be rolled in a bee hive from a hill down to the river. A person who had stolen livestock was required to compensate the victim with ten goats and a fattened ram. In cases of murder, the offender had to pay one hundred goats to the relatives of the deceased and ten goats to the elders. If the deceased was a woman then the number of goats to be paid to the family was thirty and three to the elders (Kung’u et al, 2016:1195).
This kind of compensation one could argue is discriminatory on the part of a deceased woman, in the sense that in the 21st century women have equal rights as men, but the practice by then was discriminating against women by treating them as less human than men. However, comparing the practice of the Agikuyu with those of the Igbo an ethnic group of southeast of Nigeria, one can tell that in Igbo society, especially in murder cases the practice was harsher, because a member of one family had to be taken to the victim’s family as a compensation, this kind of a practice violates human rights and one could query how compensating a human being could bring restoration? But by that it was considered to be a good mechanism of ending conflicts.
The Kenyan legal system upholds the use of customary laws in civil cases but not in criminal matters. It is argued that ignoring criminal customary laws amounts to a negation of some of the traditional dispute mechanisms in Kenya. Nevertheless, the Children Act provides that the Minister for Justice may establish rehabilitation schools for youth offenders (The Children Act 2001, Revised Edition 2012). With regards to youth offenders, the Kenyan legal system recognizes the 1990 Tokyo rules that emphasize the use of alternatives to custodial sentences.
Despite the existence of some laws, such as the Community Services Act (1998), the Probation Act (Cap.64 Revised Edition 2012) and Prisons Act (Cap 90 revised edition 2017), the efforts to reintegrate offenders in Kenya still face some challenges, such as lack of expertise in reintegration as well as stigma from community members attached to ex-offenders. Efforts, however, are in place to help people understand the need for working together towards transforming ex-offenders and accommodating them as normal contributing members of communities where they belong.
Efforts towards reforming the criminal justice system in Kenya are encouraging in comparison to its neighbour, Uganda, where sections of the population support the revival of restorative justice mechanisms but face challenges from the leaders who are not fully in support. In Kenya, by contrast, the recent rapprochement between current Kenyan President, Uhuru Kenyata, and leading opposition leader, Raila Odinga, secured through mediations by various groups behind the scenes, including religious leaders, in typical African traditional conflict resolution processes, defused tensions in Kenya, that if not addressed amicably, could have led to a rapture of peace in Kenya.
Kenyata and Odinga’s decision to reconcile and forgive one another is a milestone in the politics of Kenya because it brought an end, at least for now, to simmering tensions, and thus avoided yet another bloodbath following another disputed election, as happened in 2007. After the December 2007 elections, violence erupted, orchestrated along ethnic lines, after the elections were disputed by Raila Odinga and nearly 300 people were killed by January 2008.
The Ugandan criminal justice system was inherited from its colonial master, Britain. After independence in 1962, Uganda continued to use the colonial criminal justice system to handle criminal matters. But this system is beset with challenges and various groups and researchers have subjected it to rigorous scrutiny in recent years and called for reforms. Ugandan scholar Simon Robins said that the continuation of inherited laws from English legal system is irrational because they are irrational to the people.
Uganda responded to criticism of its criminal justice system and introduced some reforms, beginning in 1996, with the enactment of Children’s Statute that incorporated restorative justice practices for cases involving young offenders (Ekirikubinza, 2003). The Statute gave the community the authority to handle minor offenses committed by children out of court, with a focus not on punishment but on restoration, reconciliation and compensation (Skelton, A.2007:471). The second reforms came in 2001 when Uganda introduced a community service programme to address the increasing problem of overcrowding in the Uganda prison system.
Uganda’s reforms of the criminal justice system did not go far enough, however; the reforms failed to revive restorative justice as a normative justice paradigm at par with the English criminal justice system it had inherited. Yet, in some regions of Uganda, restorative justice remains popular amongst the communities. In Northern and north-western Uganda, for example, the communities ravaged by more than 20 years of civil war consistently insisted on the search for a peaceful end to the conflict through the communities’ restorative justice mechanisms. Indeed, some studies into the conflict in northern Uganda have demonstrated that some survivors of the atrocities committed during the war wanted to have a process that allowed them the opportunity to getting the truth from the perpetrators (Anyeko, 2012). This, they believed, allowed them to grasp the root causes of the killings and enjoined their children to avoid making similar mistakes in the future (Anyeko, 2012).
There were many groups advocating for the end of the war in northern Uganda, but among these, the Acholi Religious Leaders, under their umbrella organisation, the Acholi Religious Leaders Peace Initiative (ARLPI), were the leading voices that advocated for peaceful means to ending the civil war in northern Uganda, especially through the use of Acholi traditional dispute mechanisms. These leaders faced some challenges, ranging from mistrust from both sides involved in the war and threats, but they persistently urged Ugandans to settle conflicts amicably for the development of their nation. The enactment of the Amnesty Act in Uganda to a great extent created an enabling environment to the Acholi religious leaders as it allowed them to continue talks with the rebels. Despite the United Nations Office of the High Commissioner for Human Rights ’s support for amnesties, it cautions countries providing amnesty to former rebels to do so without compromising the rights of victims, such as reparations and remedies. One of the Acholi’s traditional dispute mechanisms is reconciliation, which is done through a ceremony called ‘Mato Oput’. Oput is a kind of tree normally found in Acholi land with a bitter taste. Thus, when people are in conflict negotiations are done and when one is found guilty has to compensate the victim, formerly the compensation had to be livestock but currently even monetary compensation can be done. Conflicting parties do a mock trial of fighting; thereafter, they are separated. Each of the conflicting parties brings a goat and a sheep, the animals are cut into halves, and their blood is mixed with oput and local beer.The mixture is drunk by the conflicting parties as a sign that the bitterness that existed between them should not recur and the remaining meat is cooked and eaten. Thereafter, restoration of the broken relationships is done. See The Acholi Traditional Approach to Justice and the War in Northern Uganda.
In western Uganda, various communities had their systems for conflict resolution. The Ankore, for example, had the Kyoto dispute settlement process. The parties to the conflict and other members of the community gathered around the fireplace, usually in the evenings to resolve a dispute, hence the process’s name Kyoto, which means fire place. The gathering normally took place in the evening and could continue till midnight until the solution was found. Conflicting parties’ readiness to talk and continue with the talk was one of the requirement for the process to take place. This approach could be linked to the modern RJ processes which insists that RJ takes its course when an offender has admitted to an offence. (Daly, 2016).
Among the Baganda of central Uganda, there was a practice known as Kutawulula, meaning “unravelling.” A person who, for instance, witnessed others fighting in their community had a duty of first intervening and separating the fighting parties, then had another role of ensuring that those people were reconciled. Therefore, the parties were normally called with their families and friends for a session to discuss the root cause of their fight and how to bring it to an end (Sentongo and Bartoli,2012:14).
Nigeria’s legal system is also a product of British colonial rule. British rule ended in 1960 with independence for Nigeria. Wuraola and Ojibara aver that Nigerians had their customary laws before the coming of colonialists but under colonial rule, these laws were considered barbaric and their use had to pass a test of repugnancy. But the imposed British law, interestingly, were not subjected to similar repugnancy or any other test to determine whether they were suitable for the Nigerian culture. The authors questioned why English laws were considered superior to customary laws. They further stressed that law represents the culture of the people in a particular community and the use of British laws in Nigeria reflected their own customs and not those of Nigerians; hence, they conclude that the imported British law is not law in a real sense because it does not relate to the society concerned (Wuraola, O and Ojibara, B, 2018:106).
Among suggests that restorative justice should be used but again she actually subjects the paradigm to the Western bias that it must pass the repugnancy test and meet the demands of human rights from the lens of Western countries. One should understand that even Africans did observe human rights even prior to the coming of colonialists, so when handling African affairs the claim that there were no human rights is a myth and such assertions are erroneously made. This paper doesn’t suggest that human rights weren’t observed by Africans prior to colonialists coming; rather that there is no system that worked/works perfectly, whether conventional or indigenous; hence, efforts should be made to ensure that fairness is done in all justice mechanisms by looking at the weaknesses of each and making improvements. Daly opines that RJ cannot replace the conventional system because it lacks the fact-finding mechanism that is ignored in most cases but should not be (Daly, 2016)
Solomon and Nwankwoala assert that the Nigerian criminal justice system faces challenges, such as corruption, complexity, and delays, resulting in denial of justice to some community members, and especially the poor. Therefore, they argue, there is a need to revive restorative justice mechanisms to complement the current adversarial justice system. Ayorinde has observed that despite some progress being made in the reform of the Nigerian criminal justice system, it is important to remain vigilant and not take for granted these reforms because the effects of a corrupt system affect the poor most. This situation, in which the poor bear the brunt of a corrupt criminal justice system, should not be entertained by any democratic country that believes in fairness and observance of rule of law.
The current Nigerian justice system does not facilitate a participatory process that allows the victim, offender, and the community to resolve a crime or conflict in a manner that assists the offender to reintegrate into the community (Ajah, B:2018:2).
In Nigeria, the Igbo, for example, had their own ways of resolving conflicts (Olayode, A.2017:3). In murder cases, for instance, the kinsmen of the person found guilty for killing another had to go to the victim’s kinsmen and ask for forgiveness. The victim’s kinsmen would demand reparations, which may in most cases include demand for a replacement of the deceased by kin from the offender’s kinsfolk. If a man was murdered, the offender’s clan had to find another man to be given to the victim’s family and if it was a woman, then the offender’s clan had to find a woman to replace the murdered woman of the other clan. In situations where the offender’s kinsmen failed to pay the reparations due to the victim’s clan, then they were entitled to avenge for their deceased; often the victim’s clan would choose someone influential in the offender’s clan and murder him or her (Ezenokwo and Osagie, 2014).
In case of accidental killings, the offender would be banished from the community for a number of years while his house and other property had to be destroyed to appease the gods and ancestors of the land. Although it is reiterated that conflicts in Igbo society were resolved in the spirit of brotherhood (Ezenokwo and Osagie, 2014), this paper differs on such a contention on the aspect of killing influential persons in the community when the offender’s clan did not give away one of the members to replace the deceased, because that would be unjust to an innocent clan member and the act of killing the other does not sit properly with the spirit of brotherhood unless brotherhood denotes something different from the ubuntu philosophy which, literally translated, means you are a person because of other persons and believes on helping one another regardless of the gravity of the crime committed, not an eye for an eye.
Ghana’s legal system, like that of South Africa, Kenya, Uganda, and Nigeria, was also inherited from the British colonial powers. The people of the different ethnic communities that now form the State of Ghana had their ways of handling crime and conflicts in their communities before the coming of the colonialists. Their methods of handling conflicts were determined by their culture.
Simpson explains that the legal system of any community is a result of their culture and political forces over a period of time and that there is no legal system that develops out of the unknown( (Simpson, 1988). In this context, the British common law that was exported and enforced on African communities such as in Ghana is a product of British and not African culture. Despite the existence of the indigenous laws, the British applied their own laws and made it the dominant legal system.(Dua, 2015).
Kwame states that the Ghanaian people, culturally, are not inclined to taking matters to the courts of law, especially matters that involve the State (Ameh, 2006). That partly explains why many Ghanaians responded positively to the National Reconciliation Commission (NRC), established to, among other things, “help reconcile the people of Ghana by finding out the truth about past human rights abuses” (Attafuah, 2004), because its proceedings were not like those in a court of law. However, Dua states that Ghanaians believe that imprisonment is not the best option to offenders in Ghana because the prison services face many challenges. Under present conditions and challenges, Ghana’s prisons can hardly contribute towards changing the behaviour of offenders or provide them with the necessary training to equip them with the knowledge and skills that will enable them to make positive contribution to their country upon release from prison. Ghanaians believe that community services should be prioritized over imprisonment especially for minor offenses and for first time offenders, women and the aged in Ghana.
The Commission helped a great deal in the healing victims of crimes perpetrated under the Rawlings military junta and beyond, a feat that would not have been achieved through normal court proceedings. Ghana opted for an NRC, having seen the success of South Africa’s TRC. The history of Ghana, however, differs a great deal with that of South Africa and Uganda in a sense that South Africa went through apartheid and Uganda experienced human rights violations under the leadership of Iddi Amin and Milton Obote between 1962 to 1986, while Ghana went through civil wars perpetrated mostly by want of political power, which caused grave violations of human rights; hence, there was a need of ensuring that Ghanaian unity is brought back through reconciliation so that the rule of law, democracy and human rights could be observed in Ghana.
One can argue that the efforts of bringing peace into different countries might be named differently, but the aim remains the same, that is, finding out the truth, healing the effects of human rights violations and in the end building a nation for the betterment of each individual in particular and a community as a whole. Kwame argues that reconciliation, healing, and holding offenders accountable is the best option for the Ghanaians and that the National Reconciliation Commission, though not a panacea of everything, is the best option, especially as compared to adversarial criminal prosecutions (Ameh, 2006).
Ghana used to have the Kima system of dispute resolution before the advent of colonialism, whereby whenever community members had conflicts, the matter had to be reported to either the clan leader, the subsection leader or the chief. Having summoned the parties to the conflict, the chance was given for each to tell their part of story and thereafter a decision was made by the Kima. The decision was meant to unite the disputants and not to cause more enmity; it was imperative for the leaders to ensure that the offender pays compensation and ask for forgiveness. Once that was done, then the parties had to eat in the same bowl and, when necessary, dance together as a sign of total forgiveness and unity. This culture of eating or drinking something in the course of resolving conflict seems to be a common feature in the countries discussed in this paper and demonstrates that Africans wanted a happy ending to conflict resolution. Eating or drinking from the same bowl and dancing together after the resolution of conflict or dispute are powerful symbols that show that African systems and mechanism were aimed at restoration of communal relations.
From the brief review of the relevant literature, one can conclude that the Western legal system has, to a great extent, eroded the African traditional ways of resolving conflicts, such as restorative justice approaches or processes. Daly, however, cautions that confusions should be avoided on whether RJ means the traditional mechanisms of handling conflicts or that RJ should replace the conventional justice system. She believes that RJ is a contemporary justice mechanism that can work well if properly defined. She adds that the existing confusion of retributive justice vs. restorative justice should come to an end, if RJ is to succeed, because retribution is one of the aims of the conventional justice system and is not in itself a system, and RJ is not a replacement of the conventional justice system – it is only a mechanism to be used when parties agrees to follow that path (Daly, 2016).
However, some African indigenous conflict mechanisms were punitive and against human rights; the best parts of the practices were the involvement of all parties and insistence on reparation, compensation, forgiveness and restoration of peace and harmony for communal development, which is recently missing in the conventional justice mechanism. Its use has been revived in most of the developed countries and few African countries. For fairness to prevail among African community members this paper proposes that RJ should complement the conventional system in areas where it has failed as explained in the following section.
4. The Effects of the Western Retributive and Adversarial Justice System on the African Restorative System of Settling Conflicts
One of the obvious and serious impacts of the western adversarial justice system is the repression and erosion of restorative justice systems of the various African communities. In other words, the colonial power’s adversarial justice model, which limited decision making to members of small elite, became the dominant system for administering justice in the conquered territories. This scenario was possible because the colonial powers and the army of missionaries that accompanied them had grave misconceptions about Africans: that Africans had no laws because, whatever could pass for law, were not in writing or in statute books as in their own countries.
The different African communities or nations had proper set of laws that governed all aspects of their lives. While these laws were in oral form and stored in various media, such as proverbs and songs, they were laws which were effectively communicated to community members through these media and were thus easily observed at heart. But there were more sinister reasons why the colonial powers had to destroy African justice mechanisms. Leman argues that oral traditions, as an alternative normative order, posed a threat to colonial rule because it was fluid and extremely adaptable by communities (Leman, 2011).
Ngungi wa Thiongo argues that traditional oral arts and symbols are indigenous sources of law and thus offer powerful mechanisms that undermine the presumed superiority of colonial and post-colonial law and order (Kalu and Ukam,2019:179). The colonial government in Kenya, for instance, and in other places, went to great lengths to ban oral performances by Africans because it had the potential to rival and ultimately supplant the authority of the colonial state. Zernova stresses that Africn customary laws were considered to be of less value by the colonialists (Zernova, 2007).
Ademowo and Nuhu assert that conflicts are bound to occur in any community because people differ in what they believe and have different interests and needs, but the means of conflict resolution or mediation vary from community to community. In the case of African culture, the means of conflict resolution are unique because of their emphasis on the restoration of communal ties or relations after conflict. Indeed, building peace and social harmony in communities is the main goal of African conflict resolution mechanisms and traditions (Ademowo and Nuhu, 2017).
Sadly, the positive aspects about African conflict resolution mechanisms and traditions were condemned by the colonial powers and perpetuated by post-independence African leaders and people no longer care about the unique ways Africans resolved conflict(Lanshima, C.2016:267), especially the emphasis on truth telling to get to the bottom of the problem and learn lessons to avoid similar mistakes in the future. The adversarial criminal justice system, by contrast, places the entire burden on the prosecution to prove beyond reasonable doubt that the accused committed the offence for which he or she has been charged and the courts rely on the facts and evidence that both the prosecution and defence placed before them.
While this system has it merits, it is confrontational and has often led to the wrongful convictions of innocent people, especially the poor who cannot afford to defend themselves. It sometimes exacerbates the agony of victims, who as State witnesses, are subjected to brutal cross-examination, often calculated to break them down. The participatory restorative justice mechanisms of Africans, in contrast, offered both the victim and the offender the opportunity to reconcile and the truth-telling involved, offers them some sort of relief. Indeed, as Zehr point out that truth telling is beneficial to the stakeholders and brings understanding with regards to an offence (Zehr, 2005).
The loss of processes that could lead to total healing is another effect that the western retributive and adversarial system has had on African restorative justice mechanisms. In restorative justice processes, total healing for all the parties involved – including the victim’s and the offender’s families – was an important component of justice because cordial relationships in communities and making sacrifices for the well-being of others were highly valued. In western communities, by contrast, the individual’s rights and interests over time came to trump those of family and community and the sense of sacrificing for the larger good have generally diminished.
The retributive and adversarial justice system might bring closure and healing for those in Western societies, but for African communities, healing cannot be found in courts of law with the involvement of police, other security agents, lawyers and judges, with the victim, offender and their families becoming mere spectators. Moreover, communities of the parties involved in a conflict are often absent from the trials although the State is said to represent everyone, including communities. In the African restorative justice system, however, the entire community had a role in nurturing and fostering healing.
The imposed retributive and adversarial justice system in African countries today ignores the local contexts in which the conflict arose. Social relations do not happen in a vacuum; there is a culture of the people that defines their way of life and resolving crime and conflict. The western retributive and adversarial justice system has greatly contributed to undermining the African culture because many Africans educated and socialized in western belief systems and life-styles have continued to denigrate their own culture. Thus, some of the African elite fail to grasp one of the goals of African restorative justice: restoration of the broken relations, not to declaration of a party or parties to a conflict guilty or innocent. In the African restorative justice system, once the truth has been told and the causes of the conflict understood, the matter is resolved, reconciliatory activities are performed, a new leaf or chapter is opened, and relationships are renewed. In the retributive and adversarial system, however, even after the court has delivered its judgment or verdict, those dissatisfied of the decision will continue to talk about the issue outside the court. Oluwabusayo argues that any law that does not relate to the people is no law at all and when imposed on them, it is likely to fail (Wuraola and Ojibara, 2018:105).
Thus, three conclusions can be drawn from the foregoing discussion of the effects of the western adversarial criminal justice system on the African restorative and participatory model. First, it repressed and eroded the African legal system and order and became the dominant legal order. Second, it led to a loss of processes of conflict resolution that facilitated total healing for both victim and offender, and third, it ignores the local contexts in which a conflict or crime arose.
The colonial powers saw the African legal order as a threat to their conquest and domination of the African people. That domination continues today through the legal system they enforced on African peoples, whom they regarded as inferior and barbaric. The law is a repository of a people’s culture and the continued dominance of Western legal systems in African countries means continued socialization of Africans into Western culture and worldviews. Sadly, this continues to pose a real threat to not only African culture and concepts of justice but also to our ability to develop our own legal order consistent with our culture and worldview. Therefore, every effort should be made to restore some of the values that animated African restorative justice processes. This calls for reforming the colonial legal system to accommodate more African ways of handling conflict consistent with their culture.
The Western retributive and adversarial justice system in African countries is beset with several challenges, ranging from the inability of people living in rural areas to access the courts of law and police authorities to prohibitive financial costs for pursuing justice and language barriers, since the laws in these countries are written in the language of colonialists (Sing'Oei, 2014). Crucially, the official language of the court is also the language of the former colonial power and often there has to be interpreters for those who cannot speak or understand the official language of the court.
Any attempt to verbalize African native law suggests the use of legal terms which are alien or foreign to rural African communities who, in most cases, do not have access to the law and may not have studied the language of the law (Mancuso, 2014). I argue that attempt to verbalize African native law using foreign terms could lead to a misinterpretation of the law and could result in a miscarriage of justice.
Inordinate delays in the trial of suspects or persons accused of various crimes, from petty crimes to serious homicide cases, is another challenge that confronts the criminal justice system in almost all African countries. The delays result from a combination of factors or reasons but some of the most important are: poorly trained and ill-equipped police officers who conduct investigations and collect evidence for the prosecution; poorly resourced office of the director of public prosecution (DPP), both in terms of financial and human resources; corruption in the police, the courts, the bar, and the society. Lawyers have also been accused of deliberately instigating the delays either as a tactic to defeat the prosecution’s case or make more money off their clients (Musa, 2014).
Often times, police criminal investigators lack the financial resources with which to investigate a crime or travel to the crime scene, secure it, and gather evidence and submit it in time for the prosecution to build its case in the courts. In some cases, the police investigators themselves are bribed and might either mishandle the evidence so much so that no court would convict on that evidence or drag their feet with the investigations. The lower courts, and especially at the magistrate level, are often accused of corruption; they allegedly take bribes and delay the proceedings to the extent that the victims and witnesses lose interest in collaborating with the prosecution in the case (ibid).
Crucially, the criminal justice systems in many African countries are grossly understaffed and underfunded at every level of the justice system. This reduces the capacity of the system to deliver justice efficiently. One obvious consequence of understaffing and marked lack of financial and other resources is the huge backlog of cases in courts, which also results into overcrowding in African prisons (Dua, 2015). In this context, it is fair to conclude that the African criminal system is weak and on the border of a breakdown
Some conclusions are now drawn, and recommendations made. Four main conclusions may be drawn from the discussion. First, the criminal justice systems in African countries were applied on Africans by the colonial powers in total disregard of the culture and legal order of the peoples they conquered. The immediate and long term effect of this is that it repressed and eroded the African law and legal system. In addition, it led to the loss of processes of conflict resolution that facilitated total healing for the victim, the offender, and the community. The criminal justice system in African communities before the coming of the colonial powers focused on rehabilitating the offender and restoring broken trust and relationships. It was participatory because all affected, the victim, the offender, their families, and the communities were involved in seeking the truth of what happened and why and together, chart a path to healing and reconciliation, that will transform the offender into a responsible member of the community.
Second, the western criminal justice system is adversarial and involves State organs in addressing criminal behaviour or conflict. Its goal is punishment of the offender, which is considered deterrent, albeit that is debatable. A true justice system seeks to heal the wounds caused by the criminal act; this cannot be attained in a retributive and adversarial system that employs methods that diminish the integrity of the victim and dignity of the offender and excludes the community whence the victim and offender come from. If anything, the adversarial system perpetuates recidivism of the offender and adversities between the victim, offender, and the community.
Third, the western criminal justice system, as imported and modified to suit the colonial State’s interests, and embraced and maintained after independence, is plagued with several challenges, including understaffing and underfunding, ill-trained and equipped police services, inordinate delays and corruption, whose cumulative effect is to stigmatize the offender, alienate the communities, and propagate individualism and undermine social cohesion. Indeed, many Africans consider the system oppressive and hostile to their culture and world view.
Fourth, the African restorative justice system, despite the years of denigration and erosion by the colonial powers and legacy under westernized African elite, appears to be resilient and making a comeback as evidenced in some of the countries, especially Rwanda and South Africa. While support for it appears mixed, with some countries openly coming out in support of customary law as part of the constitutional and normative order of their legal system, e.g., South Africa and others are reviving criminal justice processes, e.g., Abunzi in Rwanda. In other countries, e.g., Uganda, Ghana, and Nigeria, there is growing interest, amongst the citizens, in restorative justice mechanisms. The resurgent interest in African justice mechanism is because of some of the negative attributes of the western adversarial system discussed already.
Finally, restorative justice process, like any other humanly crafted system, is not perfect. The often cited criticism against African systems is that they are insensitive to human rights. This criticism is ahistorical and lacks any merit. African peoples know human rights well before the advent of colonialism. They may not have called the values that they developed to protect human dignity as human rights, but they nonetheless were far informed of the value of the human being and took every measure to protect it than western philosophers, who considered African inferior human beings. And crucially, it is often deliberately ignored that human rights as a distinct normative criteria in the west evolved after the Second European war in 1948 but only gain currency in the 1970s (Moyn, 2010) But no community’s values are static; the changes to restorative justice mechanisms in Africa should be inspired from within and not dictated from foreign capitals, whose interest is to maintain their dominance over African peoples and their wealth of resources.
In the light of the foregoing, two recommendations are offered. One, it is recommended that the African States should take steps to deliberately revive restorative justice mechanisms and treat it at par with the imported Western criminal justice system for three reasons. First, the system is familiar to the particular communities and proceedings are conducted in a language they understand and in case of offender or victim coming from a different community, local linguists are always handy to provide interpretation services, often gratis. Indeed, renown African writer, Ngugi Wa Thiong, in an interview by Deutsche Welle (DW) draws out attention to the importance of our languages: the mother tongue empowers any community to be whoever they want to be and to invent various things. Using a second or third language as a replacement to the mother tongue, however, is enslavement. He reiterates Africans should use their languages first then add other languages for their continent to develop.
Second, the victim, the offender, and the community are all participants and there are no prison sentences, thereby saving governments the millions spent annually for running their prison systems. Third, African communities are communal in social organization and have long recognized the communal impact of crime. The system they crafted to deal with criminal behaviour reflects this communitarian orientation or philosophy and promotes a sense of ownership of the process.
Third, it is recommended that African scholars, especially lawyers and criminologists should spearhead the revival of restorative justice mechanisms in Africa. This could be achieved through collaborative studies that engage with various communities and their leaders to objectively understand our systems and contribute to their defence.
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