We have seen corruption in Africa as an overarching problem clearly hindering development, undermining the rule of law, and undermining governance and trust of the people at the same time. In the past, responses have included criminal prosecutions, imprisonment and the confiscation of assets. Nevertheless, restorative justice, which is based on repairing harm and developing relationships, has come to be perceived as a suitable alternative to retributive measures. Although promising, there are opportunities and challenges when applying it to corruption cases in Africa.
Advantages of Restorative Justice in Corruption Cases
Repair the Harm to Society
Restorative justice focuses on the actual damage corruption brings, particularly the loss of public dollars, poorer services and weakened institutions. After apartheid in South Africa, the Truth and Reconciliation Commission (TRC) allowed those implicated in gross abuse, including financial abuse, to publicly confess to receive amnesty. While focused on human rights abuses, it provided insights into how rebuilding national unity can be achieved through public acknowledgement of wrongdoing and reparations. Public apologies, a return of stolen funds, and an insistence on reform of the system could bring similar restitutions for corruption cases.
Reform Offenders into Society to Contribute
Restorative justice assumes that those who confess to corruption can still do their bit in rebuilding society. In Rwanda, after the 1994 genocide, thousands of offenders were dealt with in cases of corruption and property crimes during the mayhem in the Gacaca courts. After confession, many of the offenders were reintegrated into their communities and sometimes helped to rebuild infrastructure. Although Gacaca encompassed issues other than corruption, Gacaca shows that such restorative practices can reintegrate wrongdoers into a productive society, rather than ostracising them. In corruption cases, lower-level officials, if visible and see themselves as the root cause of problems, could be forced to work or contribute to public education campaigns against further corruption, and to anti-corruption reforms as a condition of reintegration.
Empower Victims and Communities
Restorative processes are victim-centered, granting victims the opportunity to call out communities that have been affected by corruption as well as decide the reparative outcome. After the Goldenberg Scandal (one of the biggest financial frauds of the government to compensate nonexistent gold exports) in Kenya, public resentment led to more community involvement in restitution discussions. While full restorative justice was not attained, civil society groups called for recovered funds to be reinvested in public health and education projects, as within restorative principles. In future corruption cases, African countries could create mechanisms where ordinary citizens determine how the restitution of such benefits is distributed.
Fostering Transparency and Systemic Reform
Often, corrupt actors are asked to publicly explain how their involvement in corruption was able to take place, revealing systemic flaws. In Nigeria’s petroleum subsidy fraud scandal investigation, some of the perpetrators brought to light some flaws in the oversight mechanisms. The public disclosures enabled citizens and policymakers to have a better understanding of the vulnerabilities that were able to be exploited. Such transparency could be institutionalised through structured restorative processes, which would help to reform procurement and auditing systems, while providing partial leniency if the system received full disclosure.
Weaknesses and Risks of Restorative Justice in Corruption Cases
Risk of Public Perception of Leniency
Restorative justice might be seen as simply another way in which elites in Africa are buying their way out of true punishment, given public anger toward corruption on such a scale. After a decade of corruption under José Eduardo dos Santos, his daughter Isabel dos Santos, Africa’s richest woman, offered settlements in a number of legal rows. Many regarded this as nothing but an unjust escape for the powerful in the face of the system of justice. Care must be exercised in designing restorative approaches so that they are not seen as impunity in expensive suits and ties.
Potential for Power Imbalances to Undermine Outcomes
Offenders of wealth or political favouritism could hijack the restorative processes and manipulate the outcomes to their advantage. In the Democratic Republic of Congo, mineral contract high-profile agreements often ended with confidential settlements that were not transparent to the public. Qualified, strong, independent facilitation is essential to ensuring that restorative sessions are not easily claimed by elites to whitewash their crimes rather than facilitate real repairs. A great deal of importance should be given to safeguards such as having independent mediators, strong public oversight and civil society involvement.
Undermining Deterrence
Restorative justice could also fail to deter future corruption if it does not punish corruption effectively. Frequently, ‘amnesty for disclosure’ programs that offer an amnesty for disclosure of tax evasion and illicit wealth recovery have worked in part in Kenya, but have also floundered at times. Critics claim that leniency demonstrates to the corrupt that that eventually it all ends in forgiveness with no consequences. That should be balanced with credible threats by prosecution for non-compliance.
Conclusion
The idea of a restorative justice approach to addressing corruption in Africa is an exciting new approach that represents an opportunity to heal the harm, resocialise and reintegrate offenders, fully empower victims, promote transparency and conserve scarce judicial resources. Yet, it must be done with care. The results of poorly executed restorative justice in already weakened societies due the institutional corruption can denounce cynicism and impunity rather than rebuild trust. Any restorative approach is effective only if it is transparent, inclusive, victim-centred, and closely connected to very strong accountability mechanisms. The success or failure of future restorative initiatives across the continent relies on learning from Africa’s experience, including Africa’s experience of success and Africa’s experience of failure, and making meaningful contributions to the long-term project of reconstructing governance, legitimacy and social trust in our continent.
Odetunde Adeola Isiaka is based at the Faculty of Law at Lead City University, Ibadan.
