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THE ROLE OF PUNITIVE JUSTICE IN RECONCILING : Speech, South African Council of Churches Conference

THE ROLE OF PUNITIVE JUSTICE IN RECONCILING :  Speech, South African Council of Churches Conference



Here is someone who I think we all know about, know his story. He is working at the Trauma Centre for Victims of Violence and Torture in Cape Town, a priest in the Anglican Church who himself has had the experience of apartheid violence. Our first speaker talked about transformation of memories. Fr. Michael Lapsley has said, "I am no longer a victim, nor even simply a survivor. I am victor over evil, hatred and death." We shall now hear from him as talks about 'The role of punitive justice in reconciliation. Is this a Christian concept?'

Fr. Michael Lapsley

Will you excuse me if I start by being an anarchist and breaking the rules, sitting here instead of standing over there. I would like to begin with a story that I believes comes from the northern province of our country. The story is that two parents came to the pastor and said, "Please would you baptize our baby?" The pastor said that it would be fine and asked what they wanted to call their baby. And they said, "We want to call our baby 'Automatic'." and the pastor said, "But you know really, that's not a Christian name. How can you call your baby 'Automatic'?" And they said, "Well you see, pastor, this is our second child and our first child was called 'Manuel'". That story has nothing to do with the rest of what I am going to say.

I want to begin with a couple of tiny reflections, and in a sense my paper is a series of thoughts and reflections rather than an organized paper. I wanted to say something about my feeling when I watched Prime Evil 1 especially on the first night. I sat there at the end, completely silenced with nothing to say, and I felt the shame and guilt, not at being white, but of being human. Because in the end, I had to say to myself, 'This is what we human beings are capable of?' That's true for me , whether it is Eugene de Kock, or Rwanda or Nazi Germany. In the end it is the human story of the depths of degradation and evil that can grab hold of us. I just wanted to share that.

The other thing I wanted to say, that I've been very struck in this conference by the amount of pain and anger that is here in this community. As the Christian community, we do not often allow ourselves sufficient space to acknowledge the feelings that we have. We're too quick to say 'That's not appropriate as a Christian.' Too, too, too quick. And when I hear pastors saying, "How can I preach reconciliation when I have this kind of anger?" my response is to say, "Stop preaching. Stop preaching. Do some more listening, to others and to yourself. Work through some of that pain, anger and frustration and desire for revenge. Wrestle with it long enough that it can begin to be transformed and redeemed. And maybe visit it again and again, maybe visit it in a while, maybe in six months, in a year, in another year." But particularly we who are ministers of the gospel are not going to be of any use to others unless we wrestle with the depths of our own messed-upness, and our own wounds. Because then we cannot be the truth if we preach a gospel that sounds sweet, and people see we are burning with anger. (And I just want to say also that I don't think anger is a sin. What we do with it might be sinful, but anger is anger. It is what we feel).

In so many ways we are a deeply angry, angry nation and I don't think God can transform that anger until we put it on the table and say just how angry we are. Also I want to particularly appreciate what Bishop Dandala said about part of the problem being with the TRC victimizing the victors. Even the terminology the TRC uses when it refers to people officially declares them eventually to be victims. It is very problematic, as opposed to being a nation of survivors, a nation of victors. But I think we've also got to ask the question, "Why is it that the Mandelas of the world, and there are many Mandelas in the country, show no sign of bitterness or hatred or desire for revenge?" I think part of the reason is that many of us on the journey towards liberation discovered that the key to our struggle was sacrifice and self sacrifice, which is why we did not ask the world to pity us. We did not ask the world to feel sorry for us. We asked the world to stand with us, to join with us. We asked the world to be in solidarity. So I think for some of us, when we got hit, we were a little bit bored that we hadn't been smart enough to see what was coming, and avoid it. There is another sense in which we were quite philosophical and said "Oh well, its happened to us now." That was the nature of our struggle; that life and liberation would not come without sacrifice, and we who are Christians, learned that from Jesus, that there was no other road to new life but through suffering, crucifixion and death. And that yes, we paid a terrible cost, but what a privilege to be part of the most important struggle of the twentieth century, the struggle for the truth of the gospel that we are human beings made in God's image and likeness.

I think it was a slightly perverted sense of humour of the organizers that they asked me to speak on 'The role of punitive justice and reconciliation. Is this the Christian concept.' I am sure it was thought up by Brigalia2, to taunt me!

But let me tell you a story told by Dr. Ramashala3 to a small group of us yesterday at lunch. Her story was about when she went with a delegation from the Truth Commission a couple of weeks ago to Rwanda. The story is not about Rwanda but about a phone call that she received whilst she was there to say that her house in Boksburg had been burnt down. There she was in Rwanda. Should she come back? She stayed and when she returned found that her house had been burnt down by a group of about sixty white youths, twelve of whom were arrested by the police. They had messed up the house first and then eventually burnt it. And when they were asked why they had done it, they said it was just for fun. Dr. Ramashala had a meeting with the parents and those young people, and she told them that she had no intention of pressing charges - to the fury of the police, and she said, of her own brothers in her family. (Her sisters felt okay about it but her brothers were very upset, because of course they wanted vengeance and, punishment). She said to them, "Of course, you are going to take responsibility for what you have done, and my house will be rebuilt and you will be responsible for organizing the money to rebuild the house. Also I want you to find some people in the community, particularly old people, people who are vulnerable, and work out what you can do for them, and I want to receive a report from each of you every six months about what is happening in your life. I want to know how you are getting on at school."

Now she is a black woman living in a mainly white community, and she's getting phone calls every day from people in that community who are asking how they can help in rebuilding her house?"

I'm not sure if that would have happened had those young people gone to trial, and possibly sent to prison. And what would have been the effect on them if they gone to prison? Where would they be as young people? Let's presuppose they went to jail for two years. What would be the effect on them in two years? What road would they be on, and where would that road end? Its quite an extraordinary story. Its a story that for me dramatically illustrates the difference between punitive justice, retributive justice and restorative justice. The story has all these choices in its ingredients.

A young man came to see me at the Trauma Centre a while ago. This was before the Commission began its work. He came to persuade me to buy one of his paintings, and while we were discussing the price of the painting, he began, as so often people do, not formally, but incidentally, to tell a little of his story. He told me the story of his own detention, and of his own torture, and he said, "You know, I don't want those who did that to me, to spend years and years in prison. I don't think that will help them or us as a society. But I would like them to have to contribute to building our society. I'd like them to be asked to work in hospitals, to work in the rebuilding of houses." This young, man had probably never heard of the words, retributive justice and restorative justice, but what he was talking about was a concept of restorative justice.

When I gave evidence to the Truth Commission I ended my evidence by saying that I believed not in retributive justice but restorative justice, and I gave the following example, "If the person who sent me the letter bomb was to come to me (one of the people, because obviously there was a chain of command, and I have made the point many times, that I include the former President, de Klerk in the chain of command and therefore he has the highest level of responsibility) - if anybody, from the person who typed my name on the letter that was supposed to kill me, to the one who gave intelligence information, to the President who presided over the death squads, was to come and say, 'I did it, I'm sorry, and I now would like to something in South Africa to make it up, not just to you, but to our society'- if someone was to say for example, 'You know I decided to re-train. I used to make letter bombs, but I am now a hospital technician. I make things for people who have lost limbs', and was to say to me, 'Will you forgive me?' Of course. Of course. Because there again there is forgiveness tied to restorative justice. Would it be helpful to say, 'No, no, I think you should be locked up for twenty five years first, and we'll spend the tax payers' money with you locked up.'? What kind of harvest of hatred and bitterness and revenge would that reap, especially when you consider what our prisons are like, and the degree to which people return to those prisons in a very short time?

In South Africa today, all of us, and I don't exempt myself from that, are overwhelmed and preoccupied with crime, its effects and how to combat it. The response of the majority of the population to this crime epidemic is to call for the immediate reintroduction of the death penalty. Undoubtedly if there was a referendum tomorrow it would be won for the death penalty, immediately. Possibly even if there was a free vote of the ANC members of parliament, the same might even apply. We call for the building of more and more prisons and for longer and longer prison sentences.

It is worth noting that this was the route that was taken in the United States during the Regean and Bush years. They cut back (and continue to do so) on social and welfare spending, and they are building more and more prisons. The death penalty is being brought back in more and more states. I think it's some colossal figure like 10,000 people on death row in the whole of the United States. If you go the United States and turn on the wrong radio station as I did last time I was there, you will hear that some of those right wing, supposedly Christian, radio stations, are among the strongest proponents of the death penalty as a way of solving the problems of the United States.

With the coming of colonialism in South Africa, we also saw the advent of a system of justice based on retribution, a system which has brutalized, dehumanized and criminalized millions of black people. I am not quite sure why, but part of our commitment to forgetting in South Africa is to forget the history of slavery. I am always fascinated by how little we speak of the slavery in South Africa and what that did to the soul of this nation. But what was normative in South Africa, and we need to remind ourselves of it, was punishment. Flogging was part of the norm until it was outlawed very recently. If you were to read the Mail and Guardian last week, torture, and particularly in this province in which we are sitting, is still rampant. For hundreds of years this society has kept people subjugated by forms of retribution. And that has led us to where we are today.

One of the things that I have always been haunted by is Paulo Frere's book Pedagogy of the Oppressed. There is a particular phrase in it where it says, 'The oppressed's idea of being human is to be like the oppressor.' So millions of poor black people say, 'Bring back the death penalty'. They say this because the value of death which our society has been built upon for hundreds of years has also eaten into our souls. Somehow we have to break out of that cycle that links death to justice. Even when we read scripture we read it in the light of our values of death, not in terms of the life-giving values of the Bible. What is the best known quote from the Old Testament about justice, who can tell us? 'An eye for an eye and a tooth for a tooth.' What does that passage mean? Can anybody help us? What does it suggest? We quote it as an example of what? Its funny, isn't it, because the point about that passage that the theologians who have looked carefully at scripture have told us is that it in fact not telling us about revenge, but telling us about proportionality. So it is saying that if you steal one cow from me, what you have to return is one cow, not a hundred. The passage is a passage about equality, and yet we, almost without exception, interpret it as a passage about revenge. And its not. It's not. It's a passage about equality. But you see Jesus challenges it. He says, "None of this cold equality stuff, saying one acre of land, one acre of land." What's Jesus response? He calls for what? He responds with generosity, he calls for the response of generosity. What I want to suggest to you today is that we have interpreted scripture out of our own base desires and we have not been true to the truth or context of scripture.

A few years ago when I was living in Zimbabwe I was at a very early conference on AIDS, and the bishop of the diocese stood up and said that AIDS was punishment from God. He went on to say that the God whom we worship shapes our behaviour today. I thought to myself, "Yes, father, you are totally correct, and your God is an angry headmaster." So our understanding of who God is shapes our values and our attitudes. I suspect that many of us have a God who is an angry headmaster, and not a God who is compassionate. I think that if you look at any traditional society in the world you will see that its concepts of justice is forward looking, not backward looking. The concern of traditional societies when wrong has been done is how to restore the relationship, not how to we punish the wrong doer. We're not looking back to punish the past, we are trying to create the future. We're trying to recreate harmony. We are trying to re-member, to put back the body which has been dislocated. That is true of African society and it is true of traditional societies around the world and it is true with scripture.

Some theologians have even pointed out that we have misunderstood the ten commandments, and that we have made them injunctions rather than seeing that in the old testament what is being said is all about relationships and their restoration. So the law of Moses is saying, "You who are in a covenant relationship with God, you will not kill, you will not steal, you will not commit adultery." These are the sorts of things that people who are in a relationship with God do and don't do. And that is how we have to begin to see our approach to justice. It is 'How do we restore relationships?" If you look at Jesus and the tax collector; Jesus comes for dinner and in the context of Jesus beginning to relate to this person, Zacheus sees his sin and responds in a restorative way, by giving back his ill-gotten gains and more besides. But firstly the approach of Jesus is to accept that he is in a relationship with this person. 

I have been greatly influenced in my own thinking about restorative justice more by a person than a book, but the book is called Restorative Justice, Healing the effects of crime, written by a Jim Consedine, a Catholic priest, who was a prison chaplain for twenty years and is still a prison chaplain in New Zealand. In New Zealand for the last three or four years they have been using within their youth justice system a restorative justice approach instead of a retributive justice. Part of a restorative justice approach is that if they want to meet the victim and the offender are confronted with each other. It is not a compulsory programme. People can still go down the retributive lane if they want to. The point about a retributive system is that you deal with the State and at the end of the day the victim is left angry and bitter, maybe with some feelings of vengeance satisfied, whilst the victimizer goes off to prison to learn new tricks, to be further brutalized and dehumanized, and starts off on that cycle of crime that lasts forever. In the Ramashala story, she took a creative gospel life-giving choice. She would have been perfectly justified to take the retributive road, and people would have said, "Of course, her house was burnt down. Of course, they must go to jail". But she broke the cycle, a cycle that was maybe just beginning, and in breaking that cycle, she helped to humanize the whole community. far beyond the issue of her house being burnt down, by breaking down stereotypes that black and white people have about each other, racism, a lot of other things. She saw those kids as kids, not as those white monsters who have done this and that.

When I thought about speaking about restorative justice at this conference, I thought "My head is going into a noose; in South Africa, in Gauteng, to talk about restorative justice?" Because we have the oppressors mindset deeply within us, in our whole approach to justice and we think about vengeance, we don't think about restorative justice. I don't want to talk much longer because I hope that I have disturbed you. I hope I've started you on a journey if you haven't already begun to think about justice in a new way.

I want to end on a slightly different note and I think its important for me to say this. When the Archbishop was here some of you heard him say some very generous and very kind things about me, and that has happened a lot in this country where people in some ways have held me up. Part of that is appropriate and part of it is dehumanizing. I think we often do that to people whom we admire. We turn them into plastic. Speak to the person I stay with and he would assure you that there is nothing saintly or plastic or plaster about me. But I think because of that, I can be more of an example to others, and one of the nice things I like about the book about me which is being published, is that it shows me as human being with many contradictions, many weaknesses, plenty of sinfulness, plenty of areas where I still need to grow and develop. I think I'm of more use to my fellow South Africans in the fullness of my humanity as someone on a journey than as someone has overcome all, who is without brokenness and distortion. It is also true that it was important for some of us to survive, and its true that in some senses that when I walk the streets of South Africa I don't have to say anything. I confront people with the truth again of who we are, of what it is that we have done to each other. So yes, I can be a sign of brokenness, but I think I am also, with my humanness and my limitedness, a sign of the triumph of God, that in the end there is a life and peace and gentleness, stronger than evil and hatred and death. At the Truth Commission we see ourselves as, yes 'the Good Friday people' , yes, as 'the crucified people'. We see ourselves as the 'Holy Saturday people, the people who look for resurrection and new life'. We also see ourselves as 'the Pentecost people, the people with whom the spirit of God has been, and he walks with us and talks with us on that very long road, the road of the next hundred years, towards healing and wholeness.'

Thank you very much.

  1. Prime Evil was a 2-part series shown on SATV about Eugene de Kock who has been sentenced to 89 years in respect of the activities of Government-sponsored death squads.
  2. General Secretary of the South African Council of Churches
  3. One of the fifteen Truth Commissioners

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