Governments ranging from Africa, Asia, Europe, North America, the Middle East, and Australia are some of the leading offenders in the modern world. The case study below is a representation of harms caused by states throughout the world. History is full of examples of governments turning against a section of its population or the entire populations, and the case study below is a representation of the harm or injuries governments can cause their people. The victims of these governments suffer in silence, with no opportunity for closure. Even when repressive regimes have been overthrown or reformed, it is possible for the victims to continue suffering until their needs are explicitly met. This paper discusses the needs of victims when the state is the offender, why the needs cannot be met by a conventional criminal justice system, and how Restorative Justice can facilitate healing. The paper discusses how offender governments can be held accountable for the harm caused through offering a national or state apology.
The field of criminology is replete with literature on state crimes against its people. Some of the most serious crimes committed by governments include genocide, systematic torture, assassinations, and rape by state security apparatus among others. For instance, the Kenya Truth Justice, and Reconciliation Commission (TJRC) found out that between 1963 and 1978, the first president of Kenya presided over a government that perpetrated many violations of human rights such as Killings, torture, collective punishment, denial of basic need, arbitrary detention of political opponents and activists. It also found out that between 1978 and 2002, the second president of Kenya, Daniel Arap Moi, presided over a government that committed gross violations of human rights e.g. massacres, unlawful detentions, and systematic and widespread torture and ill-treatment of activists, and assassinations among other violations. The Commission further revealed that between 2002 and 2008, the third president of Kenya, Mwai Kibaki presided over a government that was responsible for many gross violations of human rights. These violations include unlawful detentions, extra judicial killings, and economic crimes and grand corruption. Finally, the Commission found out that despite the special status given to children in the Kenyan society, they have been subjected to untold and unspeakable atrocities including killings, physical assault and sexual violence.
The Commission learned that even though these atrocities happened over six decades ago, the victims are still suffering from the consequences. Some victims of rape and torture are always scared of the police and military, and some of them have never gotten over the stigma that comes with abuse. Others have never even considered starting a family because of the trauma they suffered. They lost trust in the government that betrayed them, and isolated themselves from the community. Some of them (including those who are dead) passed the trauma to their children, who are secondary victims.
To thwart a secessionist rebel movement in one part of the country, the military was given wide ranging powers, and they proceeded to torture and maim civilians. These activities caused harm and disrupted community life. People were forced to flee from their villages to the neighboring country. Those who remained suffered the agony of constant brutality from the police and the military.
Governments are some of the leading offenders in the modern world, and this case study is a representation of harms caused by states throughout the world ranging from Africa, Asia, Europe, North America, the Middle East, and Australia. History is full of examples of governments turning against a section of its population or the entire populations. The victims of these governments suffer in silence, with no opportunity for closure. Even when repressive regimes have been overthrown or governments reformed or laws changed, the victims can continue suffering.
This paper discusses the needs of victims when the state is the offender, why the needs cannot be met by a conventional criminal justice system, and how Restorative Justice can facilitate healing. The paper discusses how the offender governments can be held accountable for the harm caused through offering a national or state apology.
The Relationship Between Victims, Offenders, and Community in Restorative Justice
Restorative Justice is a set of principles or framework that seeks to address limitations in the conventional criminal justice system, which does not cater for the needs of victims, offenders, and the community. Restorative Justice focuses on these needs through a process that seeks to understand the harm caused, the obligations that arise, and who to engage in restoring/and or healing relationships or repairing the harm. According to Zehr (2003), the conventional criminal justice system defines crime in a way that excludes the victims. Crime is framed as an offence against the state as opposed to the victim who suffered harm. The state is concerned with upholding the law, and punishing transgressors. Its concept of justice is punitive, and the victim is only salient to the extent that he or she helps the state to prove that a crime was committed. It ignores the victim’s primary needs, namely: (1) Real information about the offense, why it happened, and why the victim was targeted. (2) An opportunity to tell his or her side of the story in the presence of the offender and the community. These acts allow the victim to receive acknowledgement for the harm suffered. (3) An opportunity to regain agency and feel in control of their lives. Taking part in their own case enables them to regain control of their lives, and feel empowered. (4) Restitution or vindication.
Meeting these needs becomes even more complex when the state is the offender. In Restorative Justice, the offender is held accountable for the harm caused but accountability in this case does not mean punishing the offender as this does not necessarily meet the needs of the victims. Victims want a sense of vindication for the wrong done to them, and they also want the offender to stop causing injury or hurting other people. Therefore, offender accountability involves taking responsibility, and “facing up to what one has done” (Zehr, 2003: 15) in a manner that provides victims with closure.
As noted earlier, the relationship between Restorative Justice and the role of victims, offenders, and the community becomes complicated when the state is the offender. Whereas principles of Restorative Justice have been examined, studied and applied to restorative circles, and victim-offender conference among others, there is little research on how they can be applied in situations where the state (as a collective) is the offender, and in situations where the victims are not affected directly. For instance, in the Kenyan case study discussed in the introduction, some of the victims did not suffer the harms directly. In fact, most of the people who testified during the commission hearings, are children of those who directly suffered the government atrocities. Often, the conventional criminal justice system does not address the harm caused by these secondary victims despite the fact that their pain is not in any way less or bearable. Restorative Justice, emphasizes the participation of the victims, offenders, and the community in righting a wrong. Zehr (2003), and Cunning (2006) notes that when one of those parties is missing, the process is at risk of becoming weak and ineffective. So, what happens to the victims and the community when the state cannot be brought to a victim – offender meeting or to Restorative Justice circle or to a conference? Are there alternatives for meeting the needs of the victims and the community?
The existing restorative justice literature that examines probable links between state crimes or abuses, and restorative justice is sparse and not well developed. Cunneen (2006), in discussing reparations, responses to the gross violation of human rights, and restorative justice, points out that Restorative Justice has been slow to consider the implications of situations where governments are the offenders/cause harm. She contends that Restorative Justice should find a way of involving the government because as an offender it must be held accountable, and encouraged to take responsibility. In other words, governments have a responsibility to repair the harms they cause
Conventional criminal justice system considers a crime as a violation of law, and an injury to the state because of the assumption that the state protects its people. People have tasked the state to provide them with security. Therefore, the state is perceived as a legitimate enforcer of law and order. The state’s arena for achieving this is the courts where the government is pitted against defensive offenders. The process rarely involves the primary victims or their communities. Restorative Justice offers a solution that involves an encounter of all stakeholders such as the victims, the offender, the community, and the government. As the figure above shows, the rights of victims should be vindicated and that offenders should compensate the victims. The role of the government in this case is to facilitate redress to victims, and also ensure that offenders are treated with fairness. As Van Ness and Strong (2015) writes:
The community seeks to restore peace between victims and offenders and to reintegrate them fully into the community. For victims, the goals can be expressed as healing, for offenders, they can be expressed as habilitation. The circular construction of the figure suggests the dynamic and dependent relationships that are necessary among the parties under restorative justice theory. (Van Ness and Strong, 2015: 56).
So, when the government is the offender the relationship depicted above is shattered. Now the government has to occupy an entire section of the circle, giving it a lot of power against the victim, and the community. That is why an injury or harm caused by the government is traumagenic. It has ripple effect on the victim’s generation and the community if left untreated. The remainder of this essay discusses national or state apology as a means of holding the government accountable.
National Apology as Accountability
One way of holding governments accountable is through demanding for a national apology. Strang (2002) argues that in the aftermath of crime, what victims want most is symbolic reparation, primarily an apology. Therefore, the offender including the state should be responsible for restoring the relationship, and can do so by apologizing to victims (Braithwaite, 1989).
A national apology is a collective, political, and intrastate apology that can take any one or combination of the following forms: Political apology, reconciliation apology, historical apology, public apology, or collective apology (Smith, 2008). It is an apology for past wrong doings of the state and its agents, directed at specific victim(s), and it is political because it is made by and through political channels or institutions. The apology usually involves the head of state apologizing – on behalf of a group, for something neither the speaker nor the vast majority of the group did – often to a group of people who, while representative, were not among those originally wronged (Villadsen, 2008). An apology issued for the distant past is called inter-temporal or historical apology, and one issued in the recent past, is called transitional apology. In the first case, the people demanding the apology are descendants or representatives of the victims, while in the second case it is the primary victims or their representatives. Some of the general principle of a national apology are discussed below.
First, according to MacLauchlan (2010), a national apology is considered genuine and meaningful when it involves material compensation, changes and witnesses, or a renegotiated political relationship between apologizer (the state) and the victim. In this case, the apology is less about feelings, and more about collective commitment to change future behavior, and public exposure of this position. This does not imply that national apologies are devoid of such feelings such as remorse, sadness, regret etc., it rather shows that the apology does more than expressing these feelings.
Second, a national apology is not left to the machination of the government alone. Often, it is crafted by both the victims and the government or offender. The participation of these two parties together with the community whose relationship was affected by the harm caused mirrors normal victim-offender conference. Drafting the apology together does not imply consensus, it merely accords the groups an opportunity to negotiate the meaning, form, and content of the apology. This frees apologies as speech-acts from both any rigid, universalistic formulation, and an equally rigid, culturally determined expression.
Third, a national apology should be detailed enough to cover the history and pattern of injustice and harm caused. The victim need to know why they were targeted, and how everything happened. Where an apology follows a Truth and Justice Commission, these issues will have been covered in the proceedings of the Commission. For instance, in the case of Kenya, the TJRC gathered comprehensive evidence and testimonies on what happened to the victims. They captured the chronology of events that led the government to attack its own people. They exonerated the victims from self-blame, by allocating blame appropriately.
Fourth, to be formally considered appropriate, the form of a national apology should include: publicity, the official nature of the state, and ceremony. Concerning publicity, the victims should be informed about the apology, and it should be made in the language they can understand. It will be futile to offer an apology to victims who cannot understand the content of the apology. But assuming the victims and their community participated in the drafting of the apology, they will be familiar with its content. Furthermore, a national apology should be written down for permanency, and reference. Publicity is also important for the victim especially if the harm caused had humiliated them and alienated them from their society. An apology given publicly will enable them to repair their relationship with others. At last they have an opportunity to feel vindicated.
Finally, the apology must be sanctioned officially to be credible. It should not be a quasi-apology made by a politician over the media or in conferences. Official sanctioning can be through a form of a legislation, official speech, or official press conference. The idea of having a ceremony is to show that such an apology is rare and is done for the sake of correcting harms caused in order to allow the victims to heal. Therefore, a national apology is not something a state can daily. The fact that a genuine apology involves some form of compensation, deters governments from carrying it out often. Of course, this can also be a setback on Restorative Justice. It is possible that the victims do not care about any compensation; they just want an acknowledgement of the harm caused. Perhaps, they just want their loved ones to know that they are not to blame for the harm or injury caused. Hence, states withholding apologies for fear of victims demanding compensation, are hurting the victims. This can be resolved through holding a conference with the victims, and the community to discuss the form of the apology.
National Apology and the Principles of Restorative Justice
How does it meet the needs of the victims, the offender, and the community?
An effective apology can yield significant therapeutic benefits for the victim, offender, and broader community. For instance, depending on the harm caused, victims can harbor resentments, which may be so extreme to the extent it encourages feelings of revenge or retaliation. This kind of resentment disrupts the victims’ life, and denies them a chance to envision a future. Instead, they keep fixed on the past that harmed them. An apology can result in a “near instantaneous erosion” of these resentments (we will discuss how this happens in the next section)
Victims fear that they may be targeted again, especially when they do not know why they were targeted in the first place (often, the conventional criminal justice system does not provide this information). They may begin to mistrust people or resort to self-blame as a way of coping with uncertainty in their lives. An apology will empower the victims; it is a promise that the harm will never happen again. It reassures them that the state has put the behavior that led to the violation behind them. Therefore, an apology restores the victim’s self-worth by vindicating him or her.
Apologizing enables the current government to separate itself from past transgressions demonstrating that they care about the future wellbeing of its citizens, and that it possesses the moral capacities that define human beings. Furthermore, having received the apology the victims may begin to regard the government in a better light. In other words, an apology from the government can restore the victims’ trust in the government.
When a government apologizes, the victims get the acknowledgement they want, and the public is reassured that the harm cannot happen to any citizen.
How can a national apology be structured to meet the needs of the victims and the community?
An effective national apology follows or incorporates principles of Restorative Justice that seek to right the wrong, and allow victims to heal. Such an apology should express the following:
Acknowledgement that harm was caused, and that the state is responsible. Restorative Justice views a crime as a harm done to people and the community (Zehr, 2003). Victims have been socialized to accept some assumptions about the world such as the orderliness of life, their control over their lives, and their relatedness to other people. When a harm is caused, they lose their control, and they become disconnected, disempowered, and disordered. At this point their greatest need is the power to regain control over their own lives, and the need for vindication of their rights. When the offender acknowledges, the harm caused, the victims regain an appropriate sense of control over their lives.
Therefore, acknowledgment allows the victim (group) to seek recognition of the way they have been treated, and mark the end of a period of painful denial. It should involve two things: Reckoning and Naming. Reckoning is the candid, unqualified acknowledgement of events, without justification or explanation. It shows that the offender is aware of the injustices they committed and does not seek to devalue their severity. Naming involves specifying the victims. It ensures the apology is made to the right people, and there are no generalizations.
The state should explicitly explain the wrong done in a truthful way. The truth should be told, and the offence should not be minimized or justified. [importance of acknowledgement]
Regret that it was wrong. This shows that what happened was wrong, and also shows that the apologizer, in this case the state is sad and sorrowful. By expressing regret, the state passes negative judgment on past events, and affirms to the victims that what was done was wrong. Caution should be exercised against mitigating the events, as this runs opposite to condemnation of the facts. In no circumstance the state should let it appear that what happened to victims was not serious compared to other atrocities elsewhere. Regret should be complimented with content addressing acknowledgement, responsibility, remorse, non-repetition, and refraining from asking for forgiveness.
Taking responsibility. The government must accept responsibility for the harm caused. There should not be justifications or excuses. In other words, liability must be assumed unconditionally because apology will be unnecessary if conditional. There should never be room for legitimating the harm. Accepting responsibility shows that the state is willing to be held accountable, to shoulder blame. It acknowledges its failure to act responsibly. The state also should refrain from passing the responsibility to another entity or blaming others or claiming provocation or even claiming that it was an accident or that they had good intentions. Those things will undermine the apology, and hurt victims more. Victims want the state to take a clear and unambiguous stand in condemnation of the offence (Herman, 2005).
Showing remorse (being sorry). This feeling is elicited by the shame and guilt of doing something wrong. It is the feeling that provides motivation for apologizing. Feeling remorseful makes the apology authentic because remorse assumes responsibility, and agency. Here the state can show the victims that what it did was shameful, and humiliating. The state should acknowledge that the act is a dent in its history.
Non-repetition (declaring that it won’t happen again). Promising not to do harm again reassures the victims and the society of their safety. They stop looking over their backs or being terrified. Safety is extremely important for the victims and the community, and one way of reassuring them that they are safe is through mechanisms that minimizes a reoccurrence of an injury. As the Kenyan case study shows, subsequent governments can perpetuate evil structures that torture and antagonize citizens. The Kenya TJRC revealed that the government has continuously neglected the victims, and sometimes even hurting them more. Therefore, a promise that an offense will never happen again is reassuring to the victims and the community. A state has power and machinery to ensure this is implemented. For instance, they can start institutions that checks government activities, and provides early warning.
Repudiation. This is closely related to the point above. It promises the victims that time has passed, and the behavior that caused the harm is gone forever. Thus, “repudiation reveals a new moral identity for the perpetrators that enables a new relationship between them and their victims. In facing the past squarely and understanding its ‘darker’ chapters, the nation can immunize and inoculate itself against repeating the mistakes of the past.” The apology is a way of showing that the state is charting a new course for the better.
Forgiveness. An apology should never ask for forgiveness, let alone expect it. The choice of forgiveness is the preserve of the victim. Actually, the fact that the state is apologizing restores power to the victim. That sense of helplessness the victim felt due to the harm caused is lost as the victim realizes that he or she has the power to forgive/ to respond to the apology. But the state should not expect any reply. That will be too much to put over the shoulders of the victims.
An apology that incorporates the elements discussed above will be consistent with the principles and goals of Restorative Justice.
This article has discussed the practice of Restorative Justice when the offender is the government. The paper recognizes the fundamental importance of the encounter between the victim and the offender. It has discussed the needs of the victim, and how the offender can be held accountable by meeting certain obligations. It discussed the complexities that arises when the offender is the government, which is also tasked with the responsibility of ensuring public safety. The paper proposed that a national apology is the perfect response, and means of participating in Restorative Justice for the government has caused harm in the past.
Through examining a national apology as the primary instrument for repairing, healing, and rebuilding relationships harmed by historical injustice, I argued that without the apology, the victims will continue in the state of victimhood, without ever getting any closure. This sense of victimhood will cause trauma that will definitely be passed down to generations. In other words, there is undercurrent of fear that exists among victims of state injustices that the very same atrocity might be revisited upon them. Therefore, an apology quiets the victims. Without the apology, there would be greater concern among the survivors, that shameful acts and humiliation might be repeated.
I discussed the limitations of the practice of Restorative Justice when the state is the offender. I showed that although there are limits on what Restorative Justice can do to heal the victims and the community when the state is the offender, it is not really correct to suggest that restorative justice has nothing to offer.
Although I did not point out that apology is not a prerequisite for restoration of the relationship or a guarantee that it will happen, I believe that when an offender apologizes restoration and reconciliation is likely to happen.
Finally, I should reiterate that an apology may not be appropriate in all restorative situations. Some situations may require other additional measures in addition to the apology.
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 A traumagenic event is one that causes trauma or is likely to cause trauma. The term was coined by Hooker, A (2017). The Little Book of Transformative Community Conferencing: A Hopeful, Practical Approach to Dialogue. (New York: Good Books).