Therapeutic Jurisprudence: Transforming Legal Education and Humanising Criminal Justice in Africa Southern Africa Law Teachers’ Conference University of Pretoria, 21-24 January 2008 ’Dejo Olowu Nelson Mandela School of Law, University of Fort Hare
Introduction • Criminal justice: continental discourse recondite • African Journal of Criminology & Justice Studies debuted in April 2005, published in the US. • Outlook of African states and penal policy (punishment as dominant theme). • Scholarly inertia and ossified orientation (retribution and deterrence).
Synopsis • Background: 54 municipal jurisdictions in Africa • Selected case studies: the Gambia; Kenya; Namibia; Nigeria; Uganda • Characteristics: Anglophone constitutional democracies (at least, formally!); adversarial criminal justice system…British colonial heritage).
Objectives • to showcase, through a review of cases and statutes, gaps in the criminal justice systems in Africa and the opportunities for a reconceptualisation of criminal justice along problem-solving lines; • to explore the implications of the innovative idea of therapeutic jurisprudence – a concept gaining foothold in several other Anglophone democracies of the adversarial tradition – for the administration of criminal justice in African states. • the integration of therapeutic jurisprudence into the curriculum of professional legal education, particularly at the tertiary level.
Legal Education and Criminal Justice: Some Theoretical Issues and Dilemmas • common law/Anglo-American traditions: emphasis on adversarial approach through the impassive study of cases and their outcomes in an equally impassive manner. • neglect of psyche, sentiments and other personal factors in the practice of law in the performance of lawyering and adjudicatory functions. • King J (Australia): “imagery of combat.” Gerber J (Arizona); McElrea J (NZ)…etc • Straight-jacketed legal training/mechanical criminal adjudication: Crime not abating!
Contemporary Approaches to Criminal Justice • humanistic approaches to criminal justice: timeline – 1960s; 1970s; 1980s. • Australia, Canada, New Zealand, United States…and Pakistan!! • Daicoff: “restorative justice”, “preventive law”, “procedural justice”, “creative problem-solving”, “holistic justice”, “collaborative law”, “transformative mediation”, and “therapeutic jurisprudence.”
Therapeutic Jurisprudence Explained • Freiberg: “Therapeutic jurisprudence and restorative justice have in common a recognition of the importance of factors such as trust, procedural fairness, emotional intelligence and relational interactions which, if applied more broadly, can provide a constructive alternative to the flawed adversarial paradigm which presently dominates criminal justice system.” • (a) the explicit recognition of the potential of law to serve as a medium of positive outcomes in legal proceedings, and (b) the integration of non-legalistic values into the practice of law.
Therapeutic Jurisprudence Explained • Wexler and Winick. • rather than cast an offender in the stereotyped perceptions of ‘wrong doer’ leading to stigmatisation as criminal law would,therapeutic jurisprudence seeks ways of modifying the impact of conflict by offering deeper investigation into the behavioural causes and phenomena that gave birth to the perceived ‘wrong’. • the end of justice that therapeutic jurisprudence promotes is that which analyses the roles of, and offers benefits to, the victim/aggrieved/complainant, the judge/jury/court, the society, and the defendant/the accused, simultaneously.
Challenges of Criminal Justice in Africa • Background of the vast majority of the judges, magistrates, state prosecutors, defence lawyers and other legal professionals who are role actors in the administration of criminal justice in African common law states: negative consequences of utilitarian approach to criminal justice.
Illustrations from Case Studies • neglectedpotential platforms of therapeutic criminal justice. • Nigeria: Criminal Procedure Act(CPA): Sections 310; 413-434. • Uganda: Section 51 of the Criminal Procedure Code (CPC). • Kenya, section 204 of the Criminal Procedure Code (CPC) .
Illustrations from Case Studies II • Medardo v Republic (Kenya). • S v Kaanjuka (Namibia) • S v Ganes (Namibia). • S v Drotsky (Namibia). • Ceesay v The State (the Gambia). • Secka v The State (the Gambia).
Criminal Justice in Africa: The Promise of Therapeutic Jurisprudence • Radical overhaul of English criminal justice system – Lord Irvine, 1999 (2001 Report; UK Criminal Justice System Strategic Plan 2008-2011 ). • Contrary to the dictates of adversarialism, the therapeutic lawyer collaborates with his/her client to identify the client’s desires, goals and interests, and to realise these through minimal or no exposure to the rigours and technicalities of the law.
Humanising Criminal Justice in Africa: Approaches and Strategies • constructive alternative to adversarialism in African common law states: it is critical that the TJ concept be integrated into the curricula of law schools as well as programmes and workshops for lawyers and judicial officers. • Therapeutic Jurisprudence as a distinct module (?) • Law Clinic/Clinical advocacy programmes…. • Legal education should simply not be about the impartation of legal skills, good as they are, but more about those interpersonal skills including emotional intelligence; mediation techniques; interviewing skills; critical and creative thinking; support skills for victims and witnesses of crime – most of which will involve forming partnerships between law schools and other disciplines.
Conclusion • In realisation of the difficulty, if not impossibility, of a complete overhaul in the criminal justice systems of African common law states in one fell swoop, the approach in this paper is for a ‘bottom-up’ engagement with the institutional transformation of criminal justice. • the role of a criminal lawyer should not be or end at ‘vanquishing’ his or her opponent in an open court, that the role of a judge or magistrate should not be in pronouncing maximal or solely punitive sentences for every conviction but should reflect a deeper understanding of the emotional issues involved in criminality. Thank you for your time and attention!