MEDIATION AS A TOOL TO REDUCE PRISON AND PRE-TRIAL DETAINEE POPULATION FOR MINOR CRIMINAL OFFENCES: A CASE STUDY OF GUYANA

MEDIATION AS A TOOL TO REDUCE PRISON AND PRE-TRIAL DETAINEE POPULATION FOR MINOR CRIMINAL OFFENCES: A CASE STUDY OF GUYANA		A B S T R A C T
Author: Joycelin Kyte   Doctoral Student, MEDIATION AND CONFLICT RESOLUTION, Euclid University   Name and address of the corresponding author: Kyte, Joycelin Georgetown, Guyana Email: jkimkyte@gmail.com		The criminal justice sector in Guyana is plagued by delays in trials, lengthy remand periods, and the incarceration of defendants for some petty offenses. These issues culminate in overcrowding of the prisons, which lead to unrest and riots. Despite the absence of legislative support, some matters are settled informally between victims and defendants in Guyana’s magistrate courts. Thus, mediation is already being used as a tool in the criminal justice sector in Guyana in a limited manner. Thus, this study explores whether formalizing mediation in the criminal justice sector can alleviate some of these issues to improve the functioning of the criminal justice sector.
Keywords: Mediation, Alternative Dispute Resolution, Restorative Justice, Criminal Justice Sector, Government Policies, Prison System, Criminal matters, Government of Guyana   IGOs: UN,UNDP,UNICEF,OHCHR,UN Watch,  International Federation for Human Rights, Human Rights First,Commonwealth Human Rights Initiative Submitted: xx/xx/xxxx Approved: xx/xx/xxxx   Access PDF: https://euclid.egnyte.com/dl/wBDMY8wDyM URL: https://www.academia.edu/IRPJ Email: pr@mail.euclid.int

 

 

1. INTRODUCTION

It is trite law that when an offense is committed, it is a crime committed against the state. Thus, the state takes the victim’s place and prosecutes the matter to bring Justice to society and the victim if one exists. Though this justice mechanism has operated from time immemorial, it may not in some instances provide what is best for the primary victim. More so, because the nature of the criminal justice system is adversarial, police and prosecutors may be more concerned with acquiring a conviction than seeking Justice because these ineluctably appear concomitant to each other. This false premise has led to overcrowding prisons and a justice system plagued by many pre-trial detainees.

The grips of colonialism and the certainty provided by litigation have perpetuated a system in which primordial forms of Justice have been eviscerated from the legal system. The overcrowding of prisons cannot be remedied by opening new prisons or expanding existing ones. Indeed, like the current ones, these will eventually become filled. Although the cure to these ills may exist in a system, the primary focus is not incarceration but rehabilitation and restoration. This fact becomes pellucid when considering that many convicted prisoners and pre-trial detainees are there for minor offenses. The tool to propel this innovation cannot be litigation. It is mediation.

The working thesis for this study is that minor offenses can be treated differently. Victims would prefer more inclusivity in how the state handles cases and, in some instances, would choose compensation instead of the defendant’s incarceration. Through proper safeguards, mediation can be formally utilized in the criminal system. It is noted that matters are already settled informally between victims and accused of certain offenses. Then the victims indicate that they do not wish to proceed with the charges. The magistrates then dismiss the charges.

Thus, for this paper, minor offenses are defined as those offenses which are stipulated under the Summary Jurisdiction (Offences) Act (Cap. 8:02) and governed by the Summary Jurisdiction (Procedure) Act (Cap. 10:02). The Summary Jurisdiction (Procedure) Act outlines the magistrate’s jurisdiction in respect of summary conviction offenses. Hence, the offenses caught under the Criminal Law Offences Act, considered hybrid offenses since they can attract trial by a magistrate or by judge and jury, are excluded from this discussion.

In proposing a framework in which mediation can effectively operate to provide justice for both parties in minor criminal offenses, this research will also examine the safeguards that can be implemented to alleviate the fears that the rich may abuse the system using money to pay their way out of any crime.

 

2. THE PRISON SYSTEM

The prisons in Guyana are a by-product of colonialism with little to no substantive modifications to alter their intended capacity. Three colonial-era prisons exist: Georgetown Prison (Camp Street), the New Amsterdam Prison, a separate prison for women, and the Mazaruni Prison. In addition, two new prisons were built to supplement the increasing need. These are the Lusignan Prison and the Timehri Prison. As a natural consequence of the passage of time and increasing crime rates, these prisons have now become overcrowded. This fact is exacerbated by the fact that the criminal justice system is inefficient. Therefore, many defendants on remand are housed in already crowded prisons.

By the end of 2018, occupancy levels were at 147.2%. Poor conditions and lengthy remand periods provided a catalyst to prisoner unrest in the nation’s oldest and largest jail, Camp Street, in March 2016. During the commotion, 17 prisoners died in a fire started by inmates. In July 2017, the prisoners orchestrated a fire in which all but one prison block was completely burnt down. This led to the escape of four inmates and the death of one officer.^[1]

The ongoing debates on how to tackle this demonstrate the depth of the problem. This problem has been exacerbated by the Camp Street fire of 2017. At the time of the incident, the site contained 984 inmates. However, the prison was only designed for a maximum capacity of 600.^[2] A Commission of Inquiry (CoI) was subsequently launched to investigate and remedy the causes of the fire.

The United States Bureau of Democracy, Human Rights and Labor further emphasized the scale of the problem in its 2018 report, which highlights the “harsh and potentially life-threatening” conditions in Guyana’s prisons. Significantly, the Report reveals that overcrowding and poor prison conditions are anything but new.^[3]

The Ministry of Finance mid-year 2019 report revealed that the issue of overcrowding still plagues the prison system in Guyana. According to the Report, the Guyana Prison Service (GPS)” currently has a workforce of approximately 500 officers and as such is understaffed by 101. The Report has revealed that there were 2069 inmates distributed across the five prison facilities, Georgetown, New Amsterdam, Mazaruni, Lusignan, and Timehri prisons.

The report shows overcrowding has been a significant issue in the Guyana prison system. It was cited by the Commission of Inquiry (CoI) into the Camp Street Prison Fire of 2017, which claimed the lives of 18 persons.^[4]

It is noted a US State Department Report 2016, stated that that there was overcrowding at the multiple prisons in Guyana due to the presence of high numbers of persons on remand.^[5]

        Article 144 of the Constitution provides that a case shall be afforded a fair hearing within a reasonable time. Unfortunately, many of the persons on remand have been awaiting trials for periods over three to four years.On April 22, 2016, Kaieteur News reported that the Officer in Charge at the Camp Street Prison, Kevin Pilgrim, told the Commission of Inquiry that at the time of the recent disturbance and fire the facility housed 1014 prisoners.^[6] He further disclosed that 413 were convicted inmates, and 601 persons on remand of this number.^[7]

The Commission of Inquiry report noted that a combination of overcrowding coupled with uncomfortable and unhygienic confinement all contributed to the riots and unrest. Further, the Inter-American Development Bank (IDB) report stated that the overcrowding at Guyana’s prisons put inmates at risk of contracting contagious diseases.

On a Monday, November 24, 2020, the Attorney General the Honorable Anil Nandlall S.C and Prison Director announced a proposed IDB-funded program to overhaul the Criminal Justice System in Guyana. The program’s main objective is to reduce Guyana’s prison population through various initiatives.In outlining the program’s components, the Attorney General explained that the first component seeks to reduce pre-trial detention, especially for individuals accused of minor offenses. In contrast, the second component will focus on alternative sentencing options. He stated: “The use of pre-trial detention is a contributing factor to the overcrowding conditions in the prisons and constitutes a challenge…. Custodial sentences for minor offenses also contribute significantly to this phenomenon”.^[8] He further stated that “Persuasive evidence suggests escalating incidents of incarceration in Guyana is directly related to the over-reliance of the Criminal Justice System on incarceration as an effective tool for addressing deviant conduct”.^[9]

He also explained that custodial sentencing for minor crimes might have drastic consequences, not only for prisoners who receive these sentences but society at large. It is mainly based on the preceding discussion that an examination of the criminal justice system in Guyana was pursued to determine whether mediation can play a pivotal role in the criminal justice system in Guyana. Further and more specifically, whether if adequately utilized, mediation can assist in reducing the overcrowding of the prisons and the delay of trials in the criminal justice system in Guyana.

 

3. MEDIATION

Mediation has its antecedent in ancient cultures, which utilized non-adjudicative methods to resolve conflicts. Empirical evidence indicates that these dispute resolution methods were quite effective within ancient cultures as they persisted for an exceedingly long perio.^[10] However, consequent to colonialization, these methods were disrupted, and the adversarial legal code of the new ruler was supplanted in conquered or ceded territories inclusive of the Caribbean and Guyana.^[11]

The reorganisation of these societies resulted in part to the assimilation of indigenous cultures into the colonial system through the introduction of different cultures brought about by slavery and subsequent indentureship. Consequently, the customary legal tradition of Africa, the Panchayat system of India, was imported into the region, superseding but not extinguishing those of the indigenous people, which persist in contemporary Guyanese society. In the Amerindian communities, the Captain/Toshao, either separately or with the village council, would preside over and pronounce on disputes among members of their respective societies. The practice is similar for the East Indian communities and the African communities of Guyana.^[12]

In modern Guyana, by Act 24 of 2010, the parliament passed the Alternative Dispute Resolution Act, intended to mediate disputes as an alternative to litigation. However, the Act expressly excludes the use of mediation in criminal matters. Section 4(1) states, “A court may, by order, refer a matter arising in proceedings before it (other than criminal proceedings) for mediation or neutral evaluation if the court considers the circumstances appropriate and whether or not parties to the proceedings consent to the referral”.

In Ghana, the legislature has enacted a similar section. However, by a comprehensive applicability clause, mediation has been extended to and practiced in minor criminal offenses. Whereas in Indonesia, mediation commences for specified offenses after the defendant has pleaded guilty. I wish to examine whether mediation can be adopted in the criminal justice sector in Guyana for minor summary offenses.

Meditation comes from the Latin word “medicare” which means “to heal”.^[13] As the meaning suggests, mediation aims to preserve the relationship between parties and the community and heal the wounds inflicted by the crime. “Healing”, as suggested by the definition of mediation, is a sin qua non to restorative Justice. Restorative Justice focuses on accountability and fairness in the criminal justice system between offenders, victims, families, and society.^[14] It seeks to bring together those parties most directly affected by a crime to attempt a collective mediation in a manner that squares with their sense of Justice.^[15] Meditation has been used to achieve restorative Justice in the USA, Canada, the UK, Germany, Scandinavia, Eastern Europe, Australia, and New Zealand.^[16]

The utilization of mediation to resolve criminal matters has also received international sanction by adopting recommendations on mediation in criminal cases by the Council of Europe in 1999. The proposals were provided to guide member states in using mediation in such matters.^[17] Further, the United Nations Congress on the Prevention of Crime and the Treatment of Offenders considered restorative justice in its plenary sessions and, as a result, developed a draft proposal. The proposal advances the use of restorative justice by member states at all stages of the criminal justice process. In 2002 the draft proposal was adopted by the United Nations.^[18]

 

4. ADR METHODS AND THEIR EFFECTIVENESS IN CRIMINAL MATTERS

The court system is firmly entrenched in adversarial methods of resolving disputes and has always been the primary focal point for dispute resolution and continues to be so for many cases despite the system’s weaknesses, such as cost and time. However, the Caribbean has adopted Alternative Dispute Resolution (ADR) methods in Civil matters such as family, commercial, contract, and property disputes. Criminal Law focuses mainly on applying the law, assessing guilt, and administering punishment. It differs from civil law. Civil Law focuses on disputes arising between two individuals, as opposed to criminal law, where the offense is committed against the State, against society at large. The question, therefore, is whether ADR methods would be effective in the criminal justice system.

• ADR Options

There are different ADR methods, such as mediation, negotiation, and arbitration. Mediation is a non-adjudicative ADR option that consists of a third party, known as the mediator, who assists the parties in coming to a settlement. However, the mediator has no decision-making power; the parties or the disputants maintain control and determine the mediation process’s outcome.

On the other hand, arbitration is an adjudicative process where the third party decides in the end. They are similar to a judge; however, the distinction with litigation is that while arbitration may look like a trial, the parties are more involved and can choose the arbitrator. Further, this type of ADR is mainly used in commercial disputes. Additionally, there is Negotiation, which, unlike the above, does not consist of a mutual third party. Instead, it is a form of communication between the parties to arrive at a mutual decision agreed upon by each party. The parties can either represent themselves or be represented by negotiating agents, such as an attorney.

• Effectiveness

In each ADR process, it is evident that the parties are more involved. This is because ADR allows parties to settle disputes outside of the courtroom in a less time-consuming and costly manner compared to litigation. In addition, it gives the parties a voice and allows them to be more involved in the process by helping them come to an agreement that is best suited for both sides. It is for these reasons that ADR is becoming increasingly popular.

However, when considering Criminal Law, there may be barriers and limitations on the areas that ADR can cover, based on  the nature of criminal cases, the process, and the punishment.

• Reduces Caseload

Some countries in the Caribbean have already introduced mediation into their legislation to deal with case backlog. Countries like Barbados and Trinidad and Tobago have started initiatives to include mediation in their legislation whereby the appointed mediator can consider alternatives to imprisonment. In Barbados, there is the Penal System Reform Act 1998, and in Trinidad and Tobago, there is the Community Mediation Act 1988. These Acts are aimed at reducing the caseload. However, it should be noted that mediation here is only available to a person charged for the first time with a scheduled offense, such as, among other things, minor crimes and trespass to property.

Further, the accused would have to first apply for mediation, and the court would then have to be satisfied that the charge may appropriately be dealt with by conciliation; that the complainant has agreed that the order should be dealt with in that way; and that both the complainant and the accused have agreed on a common mediator. Additionally, some of the punishments or outcomes of Mediation in Trinidad and Tobago are community service, work for the de facto complainant, participation in an educational or rehabilitative program, and compensation.

Here it is evident that although the legislation allows for mediation in criminal matters, it focuses more on misdemeanours than felonies, thus limiting the areas it can cover. However, this allows the court to deal with significant cases such as Homicide effectively and sexual offenses, which will require a jury, the examination, and cross-examination of witnesses, looking at whether the evidence presented is more prejudicial than probative vice versa, etc.

We see here that mediation can be effective because it allows the court to have more time and dedicate more resources towards major cases, thus reducing the caseload and allowing cases to end on time.

Although ADR options have been formally implemented in Guyana and are currently being practiced, it does not extend to criminal cases. Article 4 of the Alternative Dispute Resolution Act Cap 7:05 states that a court may, by order, refer a matter arising in proceedings before it “(other than criminal proceedings)” for mediation if the court considers it appropriate. It is clear that ADR is formally only used in civil matters Guyana.

As shown above, some  Caribbean countries are willing to adopt mediation into the criminal justice system. However, limitations may extend to the ADR option that would be more effective. Arbitration is mainly used to resolve commercial disputes, given that a contract may refer to this as being the method of resolving any dispute that may arise. As it relates to negotiation, this may not be effective considering that there is no third party to assist the parties in coming to a decision.

In criminal law, these options may leave room for many questions, such as how they will decide that both parties can agree on. For example, how does one negotiate the number of years they should spend for murdering or raping someone? How will they move forward, knowing that, unlike litigation, in ADR, the parties can disagree and never come to a resolution that both sides agree on?

There are many questions when considering whether ADR is effective and whether it can achieve the objective, which is to get Justice and adequately punish the offender and deter them and others from committing similar crimes. However, mediation may be the more appropriate method. There are different types of mediation, such as interest-based mediation and rights-based mediation. In the latter, the mediator provides an opinion on each party’s legal rights and would encourage a resolution that will follow the Law.

• Restorative Justice

Applicability of ADR processes in the criminal justice system represents a shift towards ‘Restorative Justice’. Countries globally have started using Restorative Justice in different ways, such as plea bargaining, Victim-Offender Mediation, out-of-court settlement, etc. Restorative Justice views the crime as the violation of one person’s right by another. Therefore, it teaches the offender a sense of responsibility towards the victim and the community. In addition, it aims to repair the harm caused by involving those affected.

This is more “victim-centered” to allow victims to actively participate in the process by encouraging interaction between the offender and the victim. The use of ADR here stems from the fact that although the crime is a legal infraction, it is also against real people with emotions,  and although there is legal Justice, some still wish for their justice through confrontation.

It aims at helping the offender to understand the gravity of the offense they committed. In addition, it focuses on reparation, whereby the offender can do something positive on behalf of the victim and society, which may involve compensation or community services. However, unlike civil matters, the final settlement will be pronounced by the court in criminal cases for some countries.

Here it is evident that ADR in criminal cases is referred to as restorative justice and is more focused on the victim and ensures that the victim gets personal Justice and closure since they can confront the offender and ask questions. In this sense, ADR methods such as mediation would be effective in ensuring that there is not only legal Justice but that the victim leaves feeling satisfied since the crime was committed against them and may have had a negative impact.

• Methodology and Process

There are different approaches to the practice of restorative justice, such as family group conferencing, victim-offender mediation, and sentencing and healing circles. There is a mutual third party, a trained mediator. The mediator is tasked with incorporating principles under criminal Law to provide reparations for the harm done to the victim and the community.

Fiadjoe, in “Alternative Dispute Resolution: A Developing World Perspective”, highlighted one of the programs that may be adopted, that being the Victim-Offender Mediation Program (VOMP), also referred to as Victim-Offender Reconciliation Program (VORP). He stated, “The process attempts to personalize the crime by getting the offenders to learn the effect of their crimes on the victims, while the victims get the opportunity to share their feelings to the offender”. The process is significant since the victim is not personally involved in litigation only when they give evidence. Mediation, therefore, allows the victims to express their feelings while allowing the offender to take responsibility for their actions. The following forms of restitution are practiced in Caribbean countries such as Barbados:

• Restoring the victim’s losses;
• Compensation;
• Community service;
• Doing work for the victim;
• any other form of restitution acceptable to the victim; and
• reintegration of the victim or the offender into society.

We see that restorative justice, through ADR options, shifts the crime from one against the state to one against the individual and against the community. It gives the victims room for confrontation and, more so, tries to find ways to punish the offender and hopefully get them to acknowledge their wrong and take responsibility. Whether this will deter other persons from committing a similar offense is still determined.

Based on the aforementioned, ADR is mainly used in civil matters. However, some countries have started to adopt and implement ADR into their criminal justice system, specifically mediation. Further, the applicability of ADR in criminal Law is referred to as restorative justice, which allows the victim to confront the offender and be more involved in the process. However, there is no evidence or research to suggest that these also include felonies. Further, using ADR for minor offenses allows the court to focus more on significant cases, thus preventing overcrowding of the system.

 

5. ADR AND THE GUYANESE EXPERIENCE

Mediation was introduced as a voluntary process in Guyana. The court was permitted to refer matters to mediation. Mediation was introduced as a voluntary process in Guyana. The process started formally under the guidance of Justice Carl Singh, Chancellor (ag; retired). Justice Singh was the Chairperson of the ADR Committee and the principal person responsible for introducing mediation in Guyana in 2003.

The assistance of the stakeholders, which included the Guyana Bar Association, members of the judiciary, and financial and other technical assistance from the Carter Center and USAID, contributed to the growth and development of mediation in Guyana.

By the passage in 2010 of The Alternative Dispute Resolution Act Cap. 7.05, the Court may, by order, refer a matter, other than criminal proceedings, for mediation if the court considers the circumstances appropriate and whether or not parties to the proceedings consent to the referral.

A Mediation Centre was established within the High Court of the Supreme Court of Judicature compound at Georgetown, Guyana, and in New Amsterdam, Berbice. Mr. Colin Chichester is the Mediation Director. According to statistics provided by the Mediation Director, from October 1, 2003, to December 31, 2017, 879 court cases were referred to the Mediation Centre.

On 9^th February 2016, the Family (Proceedings and Procedure) Rules 2016 were published and set out the overriding objective to encourage disputes by Mediation. See Rules 1.1(2)(b) and 13.1(c). The power to refer matters to Mediation is set out in Rule 15.5.

On February 6, 2017, the new Civil Procedure Rules 2016 (CPR), Part 26 also gave the Judges the power to order mediation.^[19]

The overriding objective of the CPR, as noted in Rule 1.01, is to enable the court to deal with cases justly. This includes ensuring that the parties are on an equal footing, saving expenses, and dealing with cases in ways proportionate to the importance of the case, the complexity of the issues, the amount of money involved, and each party’s financial position.

For these reasons, the CPR also considers alternative dispute resolution, more specifically, mediation, to assist the parties and the court to fulfill this objective. This is evident in Rule 26 of the CPR; however, the CPR only refers to civil matters.

The recent statistics of the centre presented by the Mediation Director Mr. Colin Chichester revealed the following.

• How do Matters go to Mediation According to the Civil Procedure Rules Guyana 2016?

According to the Civil Procedure Rules, there are different ways for a dispute to go to mediation. According to Rule 26.01(1), all parties are encouraged to refer their dispute to mediation at any time before a Pre-trial review, and this can be done without permission from the court. Further, the court itself has the power of ordering the parties to participate in mediation, either on its initiative or upon application (Rule 26.01(2)). However, the court must consider certain factors noted in Rule 26.01 (3). These include how far apart and how firm the parties are in their positions and the mediation costs in proportion to the claim’s value.

The court is mandated to consider whether the proceeding involves a matter of public policy that would render it inappropriate for mediation; and any other factor that the court considers appropriate. This is to ensure that the dispute can appropriately be dealt with by mediation.

• What is the Procedure?

When a court decides to order mediation, it must state the date the parties agree to a mediator of their choosing. Disagreeing will result in the matter being referred to the mediator named in the order. In addition, the court also has to state a date by which the mediation is to be completed (Rule 26.01 (4)). The parties can also extend the completion date by 28 days if they file a Consent to the Court (Rule 26.01 (5)).

Further, according to Rule 26.02 (3), each party is required, seven days before the mediation, to serve to the mediator and the other party a mediation brief which identifies the factual and legal issues in the dispute; sets out the position and interests of the party in the matters in dispute; attaches any document that the party considers of central importance to the issues in dispute; and in the case of the claimant, attaches a copy of every statement of case filed in the proceeding.

Concerning the mediation session, the CPR specifically noted that all parties and, where represented, their Attorneys-at-Law must attend the mediation, unless the court orders otherwise (Rule 26.02 (1)) Further, where the party is not an individual, for instance, a company, then the duly authorized representative, who has the authority to settle the dispute, must attend the mediation on behalf of that party (Rule 26.02 (2)). Also, according to Rule 26.02 (4), everything said at the mediation session and the mediator’s notes and records shall be deemed without prejudice settlement discussions.

• Outcome of Mediation

Rule 26.04 focused on the outcome of the mediation and noted in subsection one that if a settlement is reached, resolving some or all the issues, it must be set out in writing and be signed by the parties. The mediator would then have to file a mediation report with the court within seven days of completing the mediation, which is Form 26A, and serve it on each party. This will notify the court of the issues that were settled by the parties (Rule 26.04 (2) and (3)).

If a settlement were reached on all of the issues, the court would stay the proceeding, subject to any settlement provision dealing with the dismissal or discontinuance of the proceeding (Rule 26.04 (4)). Where a party fails to comply with the terms of the agreement, Rule 26.04 (5) allows the other party to make an application, either for Judgment on the terms of the agreement. The court may grant Judgment accordingly or lift the stay and continue the proceeding as if there had been no agreement (Rule 26.04 (5)). However, if there was no agreement on any issues, the matter will continue in Court (Rule 16.04 (6)).

The CPR also provides information of where there was a failure by a party to attend, participate in, or comply with mediation requirements. As noted previously in Rule 26.02 (1), all parties and, where represented, their Attorneys-at-Law must attend the mediation unless the court orders otherwise. If a party fails to attend the session within the first 30 minutes of the time appointed for the commencement of the mediation session or fails to serve its mediation brief as required under Rule 26.02 (3), or where a party intentionally frustrates the mediation, which includes refusing to engage in discussion of the issues or matter in dispute, then the mediator has the right to cancel the mediation session and file a Certificate of Non-Compliance (Form 26B) with the court (Rule 26.05 (1)).

As stated in Rule 26.05 (2), where a Certificate of Non-Compliance is filed, the court may either strike out any document filed by a party; dismiss the proceeding, if the non-complying party is a claimant; strike out the defence, if the non-complying party is a defendant; order a party to pay costs, or make any other order the court considers just.

Additionally, the CPR under Rule 26:03 noted that both parties must pay for mediation equally unless the court orders otherwise. Some mediators may ask that a certain amount be paid in advance as security. Further, the mediation fees paid by a party will be costs in the claim unless otherwise agreed to by the parties.

In Guyana, the justice system only allows for civil disputes to be dealt with by an alternative method of dispute resolution. This is evident in the Civil Procedure Rules, specifically Rule 26, which gives the court the power to refer to civil matters to mediation. It outlines, among other things, the procedure, and the outcome of the mediation process and how the court should address any issues that may arise, such as failure to comply with the settlement agreement.

• Alternative Resolution Dispute Act Cap 7:05

The Alternative Resolution Dispute Act supports the Civil Procedure Rules. This act was established to allow certain matters to be resolved alternatively to litigation. It permits the parties to decide whether to go to mediation before the commencement of court proceedings (Section 3(2)). The court, by order, also has the power to refer a matter other than a criminal proceeding to mediation or neutral evaluation if the court considers the circumstances appropriate (Section 4 (1)). Section 4 further states that this can be done whether or not the parties to the proceedings consent to the referral.

This shows that only civil matters can be referred to mediation, and the court may do so regardless of whether the parties agree or not. However, the parties can choose the mediator, but in default of agreement, the mediator or evaluator will be the registrar or his nominee (Section 4 (3)).

The parties also have the option of withdrawing from the session at any time (Section 5). Also, after the mediation process, if the parties arrive at a settlement, the court may then make an order to give effect to that agreement or arrangement (Section 7).

• Section 8 refers to the powers of the chancellor in compiling a list of persons suitable to be a mediator or evaluator, provided that the person consents to be on the list and agrees to comply with the Act. He also has the power to amend or revoke any list for reasons he considers appropriate. However, the parties can choose someone not found on any of the lists.
• Section 9 (4) and (5) noted that evidence or anything said or any admission in the session, or a document prepared for, during, or as a result of the session, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body. However, as noted in Section 9 (6), there are exceptions.
• Section 10 speaks to the disclosure of information obtained in connection with a mediation session or neutral evaluation session in one of the areas noted under the section. Finally, section 11 speaks to exoneration from liability for mediators and evaluators.

Based on the aforementioned, it is evident that the Alternative Dispute Resolution Act allows for only civil matters to be referred to mediation or a neutral evaluation session. Additionally, the court and the parties can choose to refer the matter to mediation. However, where there is a referral by the court, the consent of the parties is not required.

 

1. IMPACT OF MEDIATION ON THE CRIMINAL JUSTICE SYSTEM IN THE USA, CANADA, NEW ZEALAND, AND AFRICA

Mediation is a method commonly used in civil law. However, countries are now adopting mediation into their criminal justice system for several reasons, such as reducing the caseload and to allow the victim a voice in the proceeding. This can, however, vary in the impact it has on the criminal justice system.

• Maryland

Based on research, this initiative has proven to be one that can assist the court system. For instance, Maryland, a state in the United States of America, released a report in 2016 with information obtained from the Maryland Judiciary on their research on the “Impact of mediation on criminal misdemeanor cases.” The study demonstrated that mediation in criminal matters had a significant impact on the participants. Persons reported that “the outcome is working, the issues have been resolved [and] they are satisfied with this process.”^[20] It was also noted that mediation allowed for issues to be resolved with outcomes that worked in the long term and prevented the return of cases with subsequent criminal charges.^[21]

Further, the report showed that mediation allowed fewer court and law enforcement resources in the short and long term.In an article on mediation in Jamaica, Innis also shared this view, noting that the advantage is that the court is not burdened with dealing with petty matters that often permeate the court.^[22] This gives the court more time and resources to deal with major cases and substantial issues.

Albert Fiadjoe also shared his opinion noting that, based on research, it has been proven that restorative justice is more effective than the criminal justice system as it relates to the victim and the offender being satisfied with the outcome of the case.^[23] Unlike litigation, the victim is allowed to participate in the judicial process. Also, the offender is not a passive spectator in the adversarial process; they also have a voice.

The effect of the offender being satisfied with the process is that there is compliance with the restitution order.^[24] Based on the Victim-Offender Reconciliation Program Information and Resource Center of Canada, the reason for this is because, with the court system, the offender sees it as just another moral obligation from an impersonal court system. However, with mediation, the parties sit with each other, and the restitution obligation is considered voluntary, thus imposing a personal commitment.^[25] We can gather from this that by participating in the process and sharing his views, the offender takes responsibility for his actions, unlike where his character is torn down in court. This can, at times, harm the offender.

Further, in an interview, the Executive Director, Donna Parchment, of the Dispute Resolution Foundation in Jamaica, told JIS News (Jamaica Information Service) that people are satisfied with the process and have found that being involved gave them a chance to understand the conflict fully and it allowed them to address how to move forward.^[26]

Additionally, criminal mediation helps to decrease recidivism and reduces the burden on an already over-burdened judicial system. This was noted in the Maryland Judiciary research, which indicated that mediation in criminal matters reduced the likelihood of judicial action, supervised probation, and imprisonment.^[27]

Further, in Delaware, in the New Castle County Common Pleas Court, it was noted that the court had a ninety-day speedy trial requirement, which it struggled to maintain because of the overwhelming criminal caseload. Since the establishment of a federally funded criminal mediation program, the county has benefited.^[28] The program addresses misdemeanors and disputes and often results in the offender avoiding a criminal conviction and receiving restitution according to the settlement agreement.^[29] Kirshner noted that the offender could sometimes be angry and filled with resentment about the criminal process but being actively involved can have the opposite effect.^[30]

Some other advantages identified by the North territory law reform committee are that matters end faster than litigation. The process is also flexible and allows the parties to access outcomes that may not be available at the court. It also attempts to preserve the relationship between the parties; it is confidential, and everything is considered ‘without prejudice,’ meaning that it cannot be used in court and it is not compulsory, meaning that if the parties would like to go to court, they can.^[31]

• Canada

Canada first introduced Alternative Dispute Resolution (ADR) into its civil justice system due to the system’s problems concerning cost, delay, complexity, and uncertainty. It was clear that there was a need for fundamental change.^[32] The 1996 Systems of Civil Justice Task Force Report of the Canadian Bar Association stated that there should be a forum for civil justice that everyone can have access to. They noted that access to the forum, in which these rights are given life and force, is a matter which should not be a luxury reserved for the very few who can afford it. They were also persuaded that a focus on early consensual dispute resolution might be the approach to reduce costs and delays.^[33]

In 1997, the Quebec Court of Appeal began a voluntary mediation project. This seems to be one of the first Appeal Court in Canada to offer mediation.^[34] ADR has since grown in Canada and is now implemented in the civil justice system and the criminal justice system.

Mediation in the criminal justice system was introduced due to the growing recognition that the traditional justice system may not be appropriate for certain criminal behaviors and that there are also limitations.^[35] For instance, the punishment for certain crimes, which is usually imprisonment, may not be as effective as it should be. There seems to be a reliance on incarceration as a sanction. However, this has not been proven successful when considering rehabilitation and reintegration since most criminals tend to be repeat offenders, thus showing that the system is not always effective.

Thus, restorative justice programming, such as community conferencing and victim-offender mediation, has been introduced to better deal with and address the needs of both the victim and offender and the community.^[36] The aim is not only to satisfy the victim by allowing them to be more involved, but it is also focused on holding the offender accountable in a way that they are not only imposing a punishment but also creating a space where they are comfortable, where they can realize they are wrong and note the impact it has on the other party.

Restorative Justice, which is the equivalent of ADR in the civil justice system, has been part of Canada’s criminal justice system for over 40 years and is said to be an “effective approach to transform the [Criminal Justice System] and make communities safe.”^[37]  Currently, there are over a hundred restorative justice programs across Canada. Restorative justice is based on the understanding that crime violates the relationship between humanity and seeks to establish its principles on respect, compassion, and inclusivity. In addition, it aims at encouraging engagement and accountability in hopes of providing a chance for healing, reparation, and reintegration.^[38]

The success of this approach to criminal cases can be ascertained from how it addresses specific issues. The research was conducted in Canada in the year 2000 by Latimer and Kleinknecht to measure the success of restorative justice. It aimed to understand the effects of restorative justice on victims, offenders, and the community, including the criminal justice system. The authors believed that to measure the success of Restorative Justice, they had to look at whether the victims were satisfied with the process, whether recidivism was being reduced, restitution completion rates, and perceptions of fairness and, more so, safety in the community.^[39] In addition, it was essential to know whether the programs were effective since they impacted the criminal justice system as a whole.

According to Latimer and Kleinknecht, the available findings showed a slight reduction in the recidivism rates of offenders compared to the traditional system.^[40] The research also mentioned other studies carried out by way of comparison. For instance, there was a significant reduction in recidivism in Manitoba,^[41] while the Queensland Community Conferencing Project had a low recidivism rate of about 7%.^[42] The research showed that while the results varied, there was still a reduction in the recidivism rates, albeit low.

However, it should be noted that in 2018, there was an approval for a 5% increase in restorative justice by the ministers responsible for justice and public safety.^[43] This increase resulted from the impact that restorative Justice had on the Criminal Justice system. According to an article put forward by the Federal-Provincial-Territorial Meeting of Ministers Responsible for Justice and Public Safety, restorative justice has been shown to reduce recidivism by up to 12%. There is also an increase in the victims’ satisfaction of the process, given their involvement.^[44] The article referred to restorative justice as an investment.

Here it is evident that from 2000 to 2018, there was an increase in the recidivism rates. The ministers responsible for justice and public safety also approved an article that provided recommendations on moving forward.^[45] This showed their acknowledgment of the success of the programs so far and an interest in improving them to allow for a more positive impact.

According to Latimer and Kleinknecht, the restorative justice system has proven to address the needs of victims, given that most victims were satisfied with the process. The instances where there was no satisfaction resulted when the offender failed to go through with the agreed restitution.^[46] This was compared to other researches. For example, in the study conducted by Umbreit, Coates, and Kalanj in the USA, it was evident that 79% of the mediated victims were satisfied with the process compared to 57% of victims who were satisfied with the court system.^[47] Another research conducted by Prenzler and Wortley in Australia showed that almost all the victims who took part in a young-offenders project were satisfied with the process and the subsequent agreement.^[48]

The above researches show that the results varied and that in some instances, the satisfaction rate was higher than that in the court system.

Apart from addressing the victim’s satisfaction, it is also essential to address the fulfillment of the offender in ensuring that the system is fair and just. There is a belief that one of the ways to reduce recidivism is by providing offenders with a satisfying experience,^[49] which is the aim of restorative justice. It creates a space for the offender to participate, take responsibility, and agree on a solution for reparation.

Based on the research conducted by Latimer and Kleinknecht, a high percentage of the offenders were satisfied with the process and saw it as being fair.^[50] This was also noted in the research conducted by Umbreit, Coates, and Kalanj, in the USA, where 90% expressed satisfaction with the outcome and 88% believed that their restitution agreement was fair.^[51]

When addressing the impact of mediation/restorative justice, the focus is usually on the victim and the offender. Still, it also includes the community in ensuring that there is a sense of security.^[52] For example, in the research conducted by Chaterjee in Canada, the participants reported that they felt there was a greater sense of control and security in the community. They were also of the belief that the programs were restoring harmony.^[53]

Restitution is a significant part of restorative justice and represents the offender accepting accountability and taking responsibility for their actions. This can include compensation, community service, etc.^[54] According to the research by Latimer and Kleinknecht, there was a high rate of negotiated and completed restitution agreements, thus achieving one of the primary goals of restorative justice, which is repairing the harm that was done.^[55] In the research conducted by Umbreit, Coates, Kalanj, Lipkin, and Petros at four different Restorative programs in Canada, it was found that 93% of the restitution agreements were successfully negotiated.^[56] In research conducted in the USA by Umbreit, Coates, and Kalanj, a restitution completion rate of 81% compared to 58% in litigation. They noted that the agreements reached were mainly financial, with a portion being personal service and some having a community service component.^[57]

Restorative justice has proven to have a reasonably positive impact on the criminal justice system, where it has identified that most of the goals were met. There was a reduction in recidivism. The majority of the victims and offenders, who participated in the research, were satisfied; and most of the restitution agreements were successfully negotiated and were meted out by the offenders. There is, however, room for improvement given that the results did not show a 100% success. However, no system can be perfect. This has demonstrated the importance of researching to obtain data, analyze the information, make recommendations, and find solutions to better the process. Overall, restorative justice has proven to be a step in the right direction.

• New Zealand

In New Zealand, restorative justice began as early as the late 1980s in traditional Maori society, which refers to the indigenous Polynesian people of mainland New Zealand. This was done as part of the juvenile justice system. It was then applied on an ad hoc basis in 1995, and in 1998, there were pilot programs. However, it is now implemented into their legislation. This is evident in the Sentencing Act 2002, the Victims’ Rights Act 2002, the Parole Act 2002, and the Corrections Act 2004.

The Sentencing Act 2002 replaced the Criminal Justice Act 1985, and it sought to cater for principles of restorative justice. It also gave judges the discretion to refer eligible cases to Restorative Justice.^[58] According to Hannah Goodyer, the Sentencing Act would have emphasised: “healing the effects of crime and reintegrating participants through victim and community participation, offender accountability, and practical reparation.”^[59] This is evident in Section 7 of the Sentencing Act, which provided considerations when sentencing, such as, among other things, the offender taking responsibility for their actions, giving reparation, assisting in the offender’s rehabilitation and reintegration, providing for the interests of the victim.^[60]

Restorative justice has come a long way in New Zealand. It is important to know what sort of impact it has on their criminal justice system.

It is essential to have a basis on which to measure success. Bazemore and Schiff provided three guiding principles when evaluating restorative justice: repairing harm, stakeholder involvement (referring to the victim and offender), and community/government role transformation.^[61] These guidelines are broad headings to encompass the different areas that restorative justice can impact, such as, among other things, the victim and offender’s satisfaction, recidivism, and reparation. It should, however, be noted that the resources are limited in this area.

In the research conducted by Maxwell and Morris on a juvenile family group, it was found that 95% of the parties reached a restitution agreement. However, although there was a high percentage, only half of the victims were satisfied with the process, while one-third were dissatisfied.^[62]

Contrastingly, in a survey conducted by the New Zealand Ministry of Justice in 2016, it was found that 84% of the victims were satisfied with the program they attended. It was reported that this was a 2% increase from their previous survey in 2011. Regarding the overall experience, 80% of victims indicated satisfaction, a 3% increase from the study in 2011. Of these participants, 81% said they would recommend restorative justice to others compared to 80% in 2011. However, when asked whether restorative justice had a positive impact, 64% of the victims said they felt better afterward than 74% in 2011, thus showing a 10% decrease.^[63]

According to the report, victims who felt that their concerns and questions were treated seriously and thought that the offender was sincere indicated satisfaction with the process, as opposed to those who felt pressured. Further, in terms of recommending restorative justice, it was reported that victims under the age of 20 were more likely to recommend the program. As it relates to how the victims felt afterward, it was reported that more women than men indicated feeling positive and good about the program. ^[64]

Based on the report, it is evident that in most areas, there was an increase in the victim’s satisfaction in 2016 compared to 2011. Further, it shows that there are areas to improve on where victims expressed feeling worst after the process, while some felt pressured.

As it relates to recidivism, in the research conducted by Maxwell, Morris, and Anderson, it was evident that recidivism had reduced by 26% when compared with imprisonment, which is quite impressive considering that the program focused on moderate to severe offenses.^[65] Further, in one of their earlier research projects, they found that 84% of offenders were satisfied with the process and the outcome. However, it may be argued that this satisfaction resulted from the type of punishment they received, given that those who received a harsher sentence expressed dissatisfaction with the process.^[66] Further, it was found that 85% of young offenders agree to active penalties, such as community service.^[67]

Like Canada, it is evident that restorative justice has proven to positively impact the criminal justice system of New Zealand, albeit there is  need for improvement. It should, however, be noted that the above information is only a tiny portion of the research that has been conducted on the different programs in each country. Therefore, the information here cannot be the basis of determining the success of mediation/restorative justice in the criminal justice system. However, it can be used to show that the programs used in the research have been successful, and it can also be used to determine recommendations on how to improve the system.

Apart from the advantages, there are some disadvantages to having criminal mediation. Albert Fiadjoe, in his book, “Alternative Dispute Resolution: A Developing World Perspective”, stated that the law is limited in scope and only caters to very minor or petty offenses. He understands that this is because of public policy reasons and that serious crimes should not be mediated. However, he stated that there is no “reason to swing the pendulum to the other extreme whereby the law now covers only petty crimes”.^[68]

It is evident here that one of the concerns relating to mediation in the criminal justice system is that there are limitations on the type of offenses that can go to mediation and constraints on the outcome of such matters. However, there is a difference between criminal matters and civil matters. While civil matters would cover areas such as, among other things, breach of contract and negligence, criminal matters would cover rape and homicide et al. For this reason, most countries are only implementing mediation in a small way, into their criminal justice system, to deal with petty offenses.

Some other disadvantages were noted in a report by the North territory law reform committee in 1996. It identified that the offender might not fulfill the terms of the agreement; this can lead to the victim going to court to enforce the agreement. Also, there may be pressure on the offender to plead guilty, given that in most cases, there has to be an admission of guilt before going to mediation. They also noted that mediation might individualize the offense where criminal offenses are considered against the state/public. Also, if the parties cannot cooperate, that will pose a challenge and waste time, energy, and money.^[69]

• The Continent of Africa

Countries such as South Africa, Uganda, Ghana, Kenya, Nigeria, and Rwanda, have adopted restorative justice as part of their criminal justice system. The first five are former colonies and protectorates of Britain, while Rwanda is a former colony of Germany and Belgium. These countries adopted their adversarial justice system from their colonizers, however, like many other countries, such as those mentioned in this thesis, the system has its limitations.

A vast majority of Africans live in rural areas which limits their access to the formal criminal justice system. In some instances, it is inappropriate for the resolution of disputes because it can break individual social relationships thus causing conflict between members of the community which can, in turn, affect economic cooperation.^[70]  It is for this reason that over the years, they have sought ways to develop the system to better handle criminal matters. One such way is reverting to traditional methods which are quite like what is now being adopted by many countries as restorative justice. These traditional methods are influenced by their indigenous practices and are focused on dealing with the overcrowding of prisons as well as addressing human rights violations, for example, the genocide in Rwanda and Apartheid in South Africa.^[71]

According to Merry, the main purpose of the traditional dispute settlement is to restore social harmony and provide for reconciliation between the parties.^[72]  The focus is on restitution as opposed to punishment. Further, according to Adeyemi, traditionally, justice is about restitution and must be seen by people as being done.^[73]  Albeit, there are different terminologies, these traditional methods are quite like mediation and other restorative justice methods. It’s somewhat of an integration of traditional and modern conflict resolution methods.

• Rwanda

In Rwanda, restorative justice was adopted after the genocide in 1994 where, in a period of one hundred days, over eight hundred thousand people were killed by ethnic Hutu extremists. Rwanda was controlled by the Tutsi minority, but they were overthrown by the Hutu, and this was followed by the genocide. Due to international intervention, the genocide came to an end, but it was then time to prosecute those responsible for the many deaths.^[74]

They then adopted the Gacaca process since the Hutu and Tutsi shared a similar culture. Gacaca is translated as “sit down and discuss”. This was adopted to speed up the prosecution process since about ten thousand people had died in prison while awaiting trial. It took the form of meeting outdoors in the market or under a tree.^[75]

Here, offenders were encouraged to accept responsibility for their actions and to seek forgiveness from their victims. According to BBC News Africa, the Gacaca process closed about one and a half million to two million cases in Rwanda as compared to the International Criminal Tribunal (ICT) that was created to handle the prosecution of those responsible for the genocide.^[76]  The ICT successfully handled one hundred cases, which is a much smaller number than that of the Gacaca process.

According to the New Times Editorial, “When Gacaca started in 2002, it had three main objectives; to deliver justice, ascertain the truth behind the killings, and promote unity and reconciliation of Rwandans.”^[77]  Lauren shared the same sentiments, stating that the Gacaca process allowed for dialogue between the offender and victim which allowed them to unpack the truth of what happened and why it happened, thus enabling future generations to not make the same mistakes.^[78]

The Gacaca system, however, concluded in 2010 and due to the positive reviews, the government sought to institutionalize traditional methods to resolve conflict.

Another method adopted by the country is the Abunzi mediation process which means “those who reconcile”. It was formally legalized in 2006.^[79]  Here the parties are encouraged to use mediation to resolve their disputes and to come to a mutually acceptable solution. Members of the community are also allowed to attend but are not compelled to do so. This system aims to decentralise justice while making it more affordable and accessible.^[80]

The Abunzi are mediators, and they handle both civil and criminal matters. This process was designed to reach people at different levels offering justice and governance and more so, it’s there to deal with the challenges of the overburdened adversarial justice system.^[81]  Unlike the Gacaca process, this system is still present and there’s now what some may term as a synergy between the abunzi and the formal court system due to the great contribution it has made in reducing the backlog of cases.^[82]

There are, however, disadvantages. According to Martha Mutisi, there’s a possibility that the Abunzi process can become another state-mandated mediation process, where the result “could be a dramaturgical representation of reconciliation and community building while deep-seated reservations, divisions and frustrations remain latent.”^[83]  However, many other countries have a similar system whereby mediation and other forms of restorative justice are sanctioned by the court. What’s evident is that the Rwandans still hold strongly to their traditional methods which were not legalized, however, as noted previously, the Abunzi mediation process was legalized in 2006 under the Organic Law (No. 31/2006), thus showing the willingness of the country to adopt restorative justice having seen the benefits and advantages since the Gacaca process.

Based on the aforementioned, it’s evident that both the Gacaca and Abunzi systems are traditional methods of resolving disputes that were used prior to colonization and are quite similar to the “modern-day” methods of resolving disputes, such as mediation. These systems, like many others, were birthed because of the history of the country and the realization that the adversarial justice system that was adopted by their colonizers were not enough to prosecute cases in a timely manner. It was the re-introduction of these traditional methods that paved the way for cases to be dealt with quickly and effectively. The country is now adopting these methods and causing them to be legalized. They are now state-mandated.

• South Africa

South Africa was a colony of Holland and then Britain. Both countries imported their legal systems in South Africa and there is now a hybrid system comprising of the British, the Dutch and the customary laws of the indigenous Africans.^[84]  However, similar to Rwanda, South Africa had its own customs and legal systems, its own way of handling crime and conflict, and it was focused on restoring relationships.^[85]  Although there was repression, South Africa found a way to maintain its traditional ways of handling disputes.

In 1996, their customary laws began to receive recognition and even constitutional status. This was embraced by the people since they believed in Ubuntu where everyone is their brother’s keeper. Thus, they believed that when a wrong is committed, it was up to the community to work together to rehabilitate and reintegrate that offender into society. The formal adversarial justice system, which focused on punishment, did not follow the same philosophy as Ubuntu.^[86]  However, this philosophy is still embraced and is fostered through restorative justice.

The Truth and Reconciliation Commission (TRC) is one of the projects adopted in the restorative justice movement. It was implemented to deal with what happened under the apartheid where there was violence and abuse of human rights. This commission was based on the Promotion of National Unity and Reconciliation Act, No 34 of 1995. It was divided into three committees, namely, the Human Rights Violations Committee, the Reparation and Rehabilitation Committee and the Amnesty Committee.

What is evident is that similar to Rwanda, South Africa reverted to their traditional methods of resolving disputes as a way of healing the country from its past. The TRC is generally regarded as being successful in doing so.^[87]

Other forms of restorative justice were later implemented since it was clear that this was assisting the adversarial justice system. There is Victim-offender mediation in the Magistrate’s Court, Greyton (KwaZulu-Natal), where the offender and victim can come together to discuss, and the offender can apologize and take responsibility for his/her actions. They may also be ordered to compensate the victim for the loss suffered.^[88]  There is also the National Institute for Crime Prevention and Reintegration of Offenders (Nicro). This focuses mainly on young offenders charged with a criminal offence and they are tasked with attending certain programs such as the Youth Empowerment Scheme which lasts for six weeks or Family Group Conferences which involves the families of the victim and the offender in the mediation process.^[89]

Thus, it is evident that restorative justice process was a useful method to address the apartheid. The country did so by reintroducing traditional methods of resolving disputes similar to restorative justice.

Impact of Restorative Justice in South Africa

Patrick Murhula and Aden Tolla at the University of KwaZulu-Natal, South Africa did a comparative study on the effects of the Contemporary Justice System on victims and the effects of Restorative Justice Practice on Victims of Crime.^[90]

• Effects of the Contemporary Justice System on victims

Based on the data collected, some victims expressed that they were unaware of the process after they would have reported the crime and stated that they felt neglected by those in charge of their case. For instance, one of the respondents stated, “I made statements to the police, give evidence in court and be cross-examined by the defence during the trial but I was not provided with sufficient information on the proceedings … I felt neglected by the people who oversaw my case.” Another victim stated, “I would have to call to get updates on hearings about my own case … I felt humiliated, angry, and depressed about the way I was being portrayed.”

Based on the research, it seems that under this process, the victims are highly dependent on law enforcement officers and prosecutors. The researchers indicated that the trial can sometimes feel like a battle between the prosecutor on one end and the offender and his/her attorney on the other end, while the victim remains passive and even ignored. This is because the crime is seen as being against the state, as such the victim is not given the chance to adequately engage in the process. Another reason could be that the criminal justice system is overburdened.

It should be noted, however, that the country did try to find ways to assist victims, for example, there was a document called the “Minimum Standards on Services for Victims of Crime” which provided the victims with guidance. It outlined basic rights, as well as information on how they can exercise their rights. However, it failed and according to Coetzee, due to the inefficiency of some members of the justice system, some victims are still subjected to victimization.^[91]

• Effects of Restorative Justice Practice on Victims of Crime

Unlike the criminal justice system, many victims indicated satisfaction with this process. The researchers are of the view that because restorative justice is innate to the philosophy of Ubuntu, which was discussed earlier, it was easier for the people to accept because of how familiar it is to them. They stated, “what can be learned from ubuntu philosophy in this regard is that equity in the criminal justice system cannot be reached without fulfilling victims’ needs.” ^[92]

In this research, it was evident that the victims were satisfied because restorative justice catered to their needs. Further, the victims who participated in the survey noted that they were allowed to voice their concerns and ask questions about the offence. It was noted that one of the participants was a victim in an attempted murder case and expressed how beneficial the meeting was, stating that it changed her life because she was allowed to have closure and to face the person who tried to kill her and more so hold him accountable.^[93]  Another participant was a victim of sexual violence and stated, “He apologized about what he did, and it helped us as a family … it is just about understanding and being able to accept what has happened and trying to move forward and making the situation better for everybody.”

Based on their responses, it’s evident that their interest in the matter goes beyond wanting to punish their offender, it’s about having closure, confronting the accused, and having them apologize, which is exactly what restorative justice offers.

It should be noted that this is merely one research that covers the views of those who took part and may or may not be a representation of all victims in South Africa.

Africa has a rich history, starting with their culture and then the imposition of their colonizers’ way of life as well as the adoption of their legal systems, followed by independence and the integration of pre-colonial methods of resolving disputes with modern-day practices. Based on the aforementioned, it’s evident that Rwanda and South Africa have both found ways to heal their country, while also bettering their criminal justice system and that was done by re-introducing methods familiar to them that can resolve disputes promptly.

This is also evident in many other African countries such as Kenya, Uganda, Ghana and Nigeria. These countries were all former colonies of Britain and would have adopted Britain’s legal system. Prior to colonialization, they each had their own traditional way of resolving disputes similar to what is now known as restorative justice. After gaining independence, these countries have sought to re-introduce those traditional methods but in a more modern way, while still embracing the adversarial justice system. Most countries in Africa share a similar understanding and adaptation when it comes to restorative justice, since it was already part of their culture, although termed differently.

There are therefore different opinions on criminal mediation based on what persons have observed in their country. The implementation of mediation in the criminal justice system can, however, still be seen as a step in the right direction, if it is appropriately executed. It has the potential of controlling the number of cases that go to court and the resources being used to settle these matters. In addition, addressing misdemeanors through mediation provides an alternative to the traditional criminal prosecution,^[94] and in fact can complement the formal adversarial process.^[95]

However, there is no suggestion that the process is perfect, and some persons may still prefer to engage the formal court system, and as has been noted by Fiadjoe, there are limitations on the scope and outcome of the process since only misdemeanors are addressed by the system.

 

1. GUYANA AND CRIMINAL MEDIATION, FANTASY OR A REAL POSSIBILITY

A cross-section of the legal fraternity in Guyana was interviewed. This included the Honourable Chief Justice (ag), The Chief Magistrate, fifty lawyers, and police prosecutors. The general findings will be presented and depicted diagrammatically.

 

• Findings

Question: During your practice in magistrate court, did you ever facilitate the settlement of a criminal matter?

Answer:

Figure 1: Facilitating the Settlement of Criminal Matters

 

Question: How many occasions did you conduct such settlements?

Answers:

Figure 11: Number of Times a Criminal Case is Settled

 

Should the government consider implementing a formal legal framework to facilitate mediation of minor criminal offenses?

Answer:

Figure 111: The Need for the Government to Institute a Legal Framework for the Settlement of Minor Criminal Cases

 

1. CONCLUSIONS AND RECOMMENDATIONS

This paper sought to answer whether mediation can play a significant role in the criminal justice system of Guyana to reduce the prison population and pre-trial delays of minor criminal offenses? The figures presented by the Chief Clerk of Court show the volume of cases that engage the magistracy. The reality is that the system cannot expeditiously complete these matters. Hence many who are incarcerated on remand suffer long waiting periods for trials. This leads to the prison system bursting at its seams and the resulting riots, escapes, and fires. Can we continue engaging the system in the same manner, hoping that it will magically improve one day?

The views expressed by the practitioners demonstrate that the practitioners interviewed have formed the opinion that mediation can undoubtedly assist. Eighty percent of the interviewees answered in the affirmative to the question, “Should the Government consider the implementation of a formal legal framework to facilitate mediation of minor criminal offenses”?

Many of these practitioners based their answers on practice since many have resolved criminal matters through the parties arriving at a settlement. Accordingly, there is a call from both the Chief Justice (ag.) and the Chief Magistrate that there should be a formalization of what has already started as a method to conclude matters expeditiously.

The Chief Magistrate pointed out that more matters can be concluded using mediation with a formal system. It was noted that in the present scenario, many complainants who are unrepresented by attorneys, which is the usual case, may not feel comfortable engaging the defendants’ lawyers. Therefore, more work could be done in a safe environment with a mediator to resolve a formal system.

The Honourable Chief Justice (Ag) considered the issue of problem-solving. Mediation would allow the parties to solve more problems that impact them, their families, and generations of strife and bitterness, which see the fruits of assaults, abusive language, threatening language, property damage, can be addressed and resolved through mediation. The court system cannot fix this since fining or imprisoning the parties cannot in any form or manner resolve strife that lives on from generation to generation.

The Chief Magistrate noted that the complainant, in many cases leave dissatisfied in certain types of matters. This dissatisfaction stems from the fact that they did not receive the desired outcome from the system. However, with the intervention of mediation, the complainant can be granted the opportunity to become very involved in the process and state what outcome they may be desirable. Mediation is the avenue through which this opportunity can be provided.

Mediation can also provide an avenue or platform for the defendants to accept that the crime violates one person’s right by another. Finally, mediation can allow defendant to embrace responsibility towards the victim and the community.

Mediation can also provide the opportunity for healing and a consideration of the issues impacting the defendants, which would have led to that person committing criminal acts. The solution and assistance to the defendant first impact the defendant’s life and can have far-reaching effects on society. With the correct forms of interventions through the social services, this person’s life can be transformed, and the person can be an asset to the community. The harm can be repaired by involving all those affected.

Introducing mediation can undoubtedly positively impact the court system by reducing the caseload and the waiting time for trials. Since fewer minor matters infringe on the magistrate’s time, more time can undoubtedly be devoted to serious offenses. This can impact the country since serious matters can be completed faster and restore confidence in the justice sector. In addition, the expeditious conclusions of trials will see a reduction in the prison population. This will  positively affect  the prison system.

The prisoners’ confidence in the judicial system will also be restored since a trial date will invariably be in sight. Further, with fewer persons in prison, the services provided to prisoners, their welfare, and living conditions that many bemoan are below human standards will undoubtedly be improved.

The reality is that the criminal justice sector will be positively impacted. Unfortunately, there have been too many jailbreaks, fires, and riots. It is pellucid that the system needs help and help urgently. Therefore, this writer calls for the introduction of  mediation  into the criminal justice system.

Mediation has impacted the civil justice sector and has undoubtedly assisted in resolving many civil cases from the statistics discussed herein. Therefore, it is time that we give mediation space in the criminal justice sector in a formal manner.

The fact is mediation is already practiced in many magistrates’ courts, through the parties themselves or with the assistance of counsel. However, while positive results are already achieved, a formal system is necessary to provide the victim with a safe space and  many more advantages that a trained mediator can impart to the parties.

This researcher advances that the time is now, the time is here for mediation to be formally implemented in the criminal justice sector. First, however, the education of the population is critical. Guyana is a very litigious society, and many may view this as the judiciary and the executive branch of government going soft on crime. Hence an awareness campaign would be critical to the implementation. This education drive should continue even after the legislative intervention to provide members of the society with the necessary relevant facts to consider this medium to solve disputes correctly.

This researcher concurs with American author Reimund’s contention that restorative justice and the law should not be seen as foes. Instead, the former can fill voids of injustice in the criminal justice system.^[96]Larysa Simms, three-pronged model to highlight mediation’s role within the criminal justice system can be instrumental in this exercise. First, it is contended and submitted that mediation specifically for minor offenses can increase efficiency within the criminal justice system. The court can focus more time and resources on indictable crimes. The second prong focus on improving the plea-bargaining process is critical since Guyana already has a plea-bargaining act that can now be more utilized in the adversarial adjudication process. The role of criminal mediation would promote and enhance victim involvement in the process and effective communications between participants. The third prong of the criminal mediation model fosters victim-offender interaction after guilt has been determined in the adjudicatory process.^[97] This model can be utilized to implement criminal mediation in the criminal justice sector in Guyana.

The main findings of this study support the theory that mediation can be utilized in a formal manner to resolve criminal disputes in Guyana. It is therefore recommended that mediation should be applied in Guyana to resolve minor criminal cases. Legislative intervention in the form of a Criminal Mediation Act  would be necessary. Notably some key pieces of legislation which govern the practice and procedure of criminal cases in the Magistrate’s court would require amending.

• Recommendations

The following recommendations are tendered for the Government of Guyana to consider.

• Amend Act 24 of 2010, The Alternative Dispute Resolution Act, to include mediation in criminal matters expressly.
• Amend the Summary Jurisdiction Procedure Act 10:02, the Summary Jurisdiction Offenses Act 8:02, and other relevant pieces of legislation to permit magistrates to refer parties to mediation for certain scheduled offenses.
• Enact legislation to govern the practice and procedure of criminal mediation.
• The Criminal Mediation Act should address certain key areas which include the conditions of referral of cases to mediation, the training and qualifications of mediators and clearly identify a schedule of offences which can be referred to mediation.
• Amend the Laws of Guyana to permit Senior Police Officers for certain scheduled offenses to conduct mediation at the police station and then provide a monthly report to the Director of Public Prosecutions on matters concluded in this manner.
• Seek assistance with funding from international organisations and institutions interested in the reform of the criminal justice sector.
• Commence an extensive education awareness drive across the country on social media, television, radio, and newspapers, educating persons on the process and the advantages of the criminal justice system, individuals, communities, and the country.
• Utilize the University of Guyana and its distant learning facilities to deliver guest lectures and facilitate ADR courses.
• Collaborate with religious bodies in the community to foster a continuous education drive.
• Establish mediation centers in every region across Guyana.
• Provide more persons to be trained as mediators to increase the number of mediations after the relevant amendments to legislation. This should include senior police officers, community leaders, Captains of Amerindian Villages, and leaders of religious bodies.
• Commence a pilot project to determine best practices to facilitate this overall mediation process, then extend the project across the country.

 

Conflict of Interest

The author has no conflicts of interest to declare. There are no co-authors, and there is no financial interest to report. I certify that the submission is original work and is not under review at any other publication.

 

References

• Clare Anderson, Mellissa Ifill, Estherine Adams, Kellie Moss, “Guyana’s Prisons: Colonial Histories of Post-Colonial Challenges,” September 8, 2020, https://doi.org/10.1111/hojo.12382.

 

• Clare Anderson et al., “Guyana’s Prisons: Colonial Histories of Post-Colonial Challenges,” The Howard Journal of Crime and Justice 59, no. 3 (2020): 335–349.^[1]

 

 

• “Ministry of Finance – Government of the Republic of Trinidad & Tobago,” n.d., accessed July 16, 2021, https://www.finance.gov.tt/.

 

• “US State Department Report Highlights Neglect of Guyana Prisons,” Kaieteur News, April 28, 2016, accessed December 19, 2021, https://www.kaieteurnewsonline.com/2016/04/28/us-state-department-report-highlights-neglect-of-guyana-prisons/.

 

• “Prison Deaths COI…Facility Was Not Designed to House 1000 Inmates,” Kaieteur News, April 22, 2016, accessed November 11, 2021, https://www.kaieteurnewsonline.com/2016/04/22/prison-deaths-coifacility-was-not-designed-to-house-1000-inmates/.

 

 

• Rabindra Rooplall, “Restorative Justice, Sentencing Guidelines Being Reviewed,” Guyana Chronicle, last modified September 14, 2020, accessed December 19, 2021, https://guyanachronicle.com/2020/09/14/restorative-justice-sentencing-guidelines-being-reviewed/.

 

 

• Fiadjoe Albert, Alternative Dispute Resolution: Developing a World Perspective (London: Cavendish Publishing Limited, 2004), 2.

 

• Priscilla Chandra-Haniff, Law 3102: Alternative Dispute Resolution Manual (Turkeyen: University of Guyana, 2020), 23.

 

 

• Mensah-Panford Prapjel, “Mediation in Ghana’s Criminal Legal System: A Proposal for an Extension to Cover Severe Offfences,” March 20, 2018, 5.

 

• Fiadjoe Albert, Alternative Dispute Resolution: Developing a World Perspective (London: Cavendish Publishing Limited, 2004), 122.

 

 

• MS Umbreit, RB Coates, and B Vos, Victim-Offender Mediation: Three Decades of Practice and Research, n.d., 282.

 

 

• Civil Procedure Rules 2016 (CPR), Laws of Guyana, Part 26.

 

• Maryland Judiciary and State Justice Institute, “Impact of Mediation on Criminal Misdemeanor Cases,” September 2016, https://mdcourts.gov/sites/default/files/import/courtoperations/pdfs/criminalcourtimpacttwopagesummary.pdf ; https://www.mdcourts.gov/courtoperations/adrprojects.

 

 

• Abiola Inniss, “Mediation in Caribbean Justice,” accessed November 11, 2021, https://www.mediate.com/articles/InnissA1.cfm.

 

• Albert Fiadjoe, Alternative Dispute Resolution: A Developing World Perspective.

 

 

• Ibid; Marty Price, J.D., “Crime and Punishment: :Can Mediation Produce Restorative Justice for Victims and Offenders?,” Online Journal of Peace and Conflict Resolution 1(2) (1998), accessed November 11, 2021, https://www.trinstitute.org/ojpcr/1_2price1.htm.

 

• “Changing Lives Through Mediation – Jamaica Information Service”.

 

• Clare Anderson, Mellissa Ifill, Estherine Adams, Kellie Moss, “Guyana’s Prisons: Colonial Histories of Post-Colonial Challenges,” September 8, 2020, https://doi.org/10.1111/hojo.12382.

 

• Jennifer Batchelor, “Changes and Challenges: C.P. Court Administrator Carole Kirshner,” DEL. L. WKLY VOL. 7, no. No. 35 (n.d.): Sept. 1, 2004.

 

 

 

• Mr Russell Goldflam Et Al., “Members Of The Northern Territory Law Reform Committee,” N.D., 88.

 

• Jerry McHale, “Uniform Law Conference of Canada, Uniform Mediation Act, Discussion Paper: Civil Section (2000).” (August 2000).

 

• Canadian Bar Association and Task Force on Systems of Civil Justice, Report of the Canadian Bar Association Task Force on Systems of Civil Justice. (Ottawa: The Association, 1996).

 

• Clare Anderson, Mellissa Ifill, Estherine Adams, Kellie Moss, “Guyana’s Prisons: Colonial Histories Of Post-Colonial Challenges,” September 8, 2020, Https://Doi.Org/10.1111/Hojo.12382.

 

• Department of Justice Government of Canada, “The Effects of Restorative Justice Programming: A Review of the Empirical,” last modified January 1, 2000, accessed November 11, 2021, https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr00_16/index.html.

 

• Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons,” Kaieteur News, April 28, 2016, accessed November 11, 2021, https://www.kaieteurnewsonline.com/2016/04/28/us-state-department-report-highlights-neglect-of-guyana-prisons/.

 

• “Restorative Justice – Key Elements of Success – Secrétariat Des Conférences Intergouvernementales Canadiennes,” n.d., accessed November 11, 2021, https://scics.ca/en/product-produit/restorative-justice-key-elements-of-success/.

 

• Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons.”

 

 

• Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons”.

 

• James Bonta, Restorative Justice: An Evaluation of the Restorative Resolutions Project (1998), 2018.

 

• Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons”.

 

• Government of Canada, “Department of Justice – Restorative Justice”.

 

• “Prison Deaths COI…Facility Was Not Designed to House 1000 Inmates”.

 

 

• Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons”.

 

• Umbreit, Coates, and Kalanj, Victim Meets Offender.

 

• Hennessey Hayes et al., Making Amends: Final Evaluation of the Queensland Community Conferencing Pilot (Brisbane, Queensland: Griffith University, Centre for Crime Policy and Public Safety, School of Justice Administration, 1998).

 

• Sherman et al., “Experiments In Restorative Policing: A Progress Report on the Canberra Reintegrative Shaming Experiments (1998)”.

 

• Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons”.

 

• Albert Fiadjoe, Alternative Dispute Resolution: A Developing World Perspective.

 

• Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons”.

 

• Jharna Chatterjee and Royal Canadian Mounted Police Ottawa Ontario K1A 0R2, Report on the Evaluation of RCMP Restorative Justice Initiative: Community Justice Forum as Seen by Participants (Canada, 1999).

 

• Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons”.

 

 

• Mark S Umbreit and Robert B Coates, Mediation of Criminal Conflict: An Assessment of Programs in Four Canadian Provinces (Winnipeg, Man.: John Howard Society of Manitoba, 1995).

 

• Albert Fiadjoe, Alternative Dispute Resolution: A Developing World Perspective.

 

• Pfander, “Evaluating New Zealand’s Restorative Promise”.

 

 

• “Sentencing Act 2002 No 9 (as at 05 October 2021), Public Act Contents – New Zealand Legislation,” n.d., accessed November 11, 2021, https://www.legislation.govt.nz/act/public/2002/0009/latest/DLM135342.html.

 

• Gordon Bazemore and Mara Schiff, Juvenile Justice Reform and Restorative Justice: Building Theory and Policy from Practice (London; New York: Routledge, 2011).

 

• Allison Morris and Gabrielle Maxwell, “Restorative Justice in New Zealand: Family Group Conferences as a Case Study”.

 

• New Zealand Ministry of Justice, “Restorative Justice Victim Satisfaction Survey: Research Report”, accessed November 11, 2021, //www.unodc.org.

 

 

• G Maxwell, A Morris and T Anderson, “Can Restorative Justice Reduce Reconviction and Costs?” 13 (2000).

 

• Allison Morris and Gabrielle Maxwell, “Restorative Justice in New Zealand: Family Group Conferences as a Case Study,” accessed November 11, 2021, http://www.westerncriminology.org/documents/WCR/v01n1/Morris/Morris.html.

 

 

• Albert Fiadjoe, Alternative Dispute Resolution: A Developing World Perspective, 1st Edition (United Kingdom: Routledge-Cavendish, 2004).

 

 

• Don John Omale Phd, “Justice in History: An Examination of ‘African Restorative Traditions’ and the Emerging ‘Restorative Justice’ Paradigm” 2 (November 5, 2006).

 

• Lezahne van Wyk, “Restorative Justice in South Africa: An Attitude Survey among Legal Professionals” (February 2015), accessed December 22, 2021, http://scholar.ufs.ac.za/xmlui/handle/11660/810.

 

• Sally Merry, “The Social Organization of Mediation in Non-Industrial Societies: Implications for Informal Community Justice in America,” in The Politics of Informal Justice: Comparative Studies, ed. Richard L. Abel, vol. II (New York: Academic Press, 1982).

 

• A A Adeyemi, “Personal Reparations in Africa: Nigeria and Gambia (From Research Workshop on Alternatives to Imprisonment,” Office of Justice Programs 1 (1990): 3–18.

 

• “Rwanda Genocide: 100 Days of Slaughter,” BBC News, April 4, 2019, sec. Africa, accessed December 22, 2021, https://www.bbc.com/news/world-africa-26875506.

 

 

 

• “Gacaca Courts Achieved Their Objectives,” The New Times | Rwanda, last modified April 11, 2012, accessed December 22, 2021, https://www.newtimes.co.rw/section/read/51568.

 

• Lauren Haberstock, “An Analysis of the Effectiveness of the Gacaca Court System in Post-Genocide Rwanda,” Global Tides 8, no. 1 (January 1, 2014), https://digitalcommons.pepperdine.edu/globaltides/vol8/iss1/4.

 

• Organic Law (No. 31/2006).

 

• Martha Mutisi and Kwesi Sansculotte-Greenidge, “Integrating Traditional and Modern Conflict Resolution: Experiences from Selected Cases in Eastern and the Horn of Africa – Africa Dialogue Monograph Series No. 2/2012 – Ethiopia,” ReliefWeb (2012), accessed December 22, 2021, https://reliefweb.int/report/ethiopia/integrating-traditional-and-modern-conflict-resolution-experiences-selected-cases.

 

• Martha Mutisi, “The Abunzi Mediation in Rwanda: Opportunities for Engaging with Traditional Institutions of Conflict Resolution,” Africa Portal (October 1, 2011), accessed December 22, 2021, https://www.africaportal.org/publications/the-abunzi-mediation-in-rwanda-opportunities-for-engaging-with-traditional-institutions-of-conflict-resolution/.

 

• Organic Law (No. 31/2006).

 

• Martha Mutisi and Kwesi Sansculotte-Greenidge, “Integrating Traditional and Modern Conflict Resolution: Experiences from Selected Cases in Eastern and the Horn of Africa – Africa Dialogue Monograph Series No. 2/2012 – Ethiopia,” ReliefWeb (2012), accessed December 22, 2021, https://reliefweb.int/report/ethiopia/integrating-traditional-and-modern-conflict-resolution-experiences-selected-cases.
• Amanda Barratt and Pamela Snyman, update by Salona Lutchman, “UPDATE: Researching South African Law – GlobaLex,” accessed December 22, 2021, https://www.nyulawglobal.org/globalex/South_Africa1.html.

 

• Julena Jumbe, Gabagambi Julena, and Jumbe Gabagambi, “A Comparative Analysis of Restorative Justice Practices in Africa” (October 1, 2018).
• Christa Rautenbach, “Legal Reform of Traditional Courts in South Africa: Exploring The Links Between Ubuntu, Restorative Justice And Therapeutic Jurisprudence,” African Journal of International and Comparative Law 2 (December 1, 2015): 275–304.

 

• “Truth and Reconciliation Commission (TRC) | South African History Online,” accessed December 22, 2021, https://www.sahistory.org.za/article/truth-and-reconciliation-commission-trc.

 

• https://mirror.unhabitat.org/restorative_justice.

 

 

• Patrick Bashizi Bashige Murhula and Aden Dejene Tolla, “The Effectiveness of Restorative Justice Practices on Victims of Crime: Evidence from South Africa,” International Journal for Crime, Justice and Social Democracy 10, no. 1 (March 1, 2021): 98–110.

 

• Prof Susan Coetzee, “Victim Rights and Minimum Standards for the Management of Learner Victims of Sexual Misconduct in South African Schools,” Child Abuse Research South Africa (CARSA) 14 (October 1, 2013): 37–49.

 

• Patrick Bashizi Bashige Murhula and Aden Dejene Tolla, “The Effectiveness of Restorative Justice Practices on Victims of Crime: Evidence from South Africa,” International Journal for Crime, Justice and Social Democracy 10, no. 1 (March 1, 2021): 98–110.

 

 

• Simms, “Criminal Mediation Is the BASF of the Criminal Justice System”.

 

• Mary Ellen Reimund, “The Law and Restorative Justice: Friend Or Foe? A Systemic Look At The Legal Issues In Restorative Justice,” Drake Law Review 53 (N.D.): 26.

 

• Mary Ellen Reidmund, “Law And Restorative Justice: Friend Or Foe? A Systemic Look At The Legal Issues In Restorative Justice,” Drake Law Review 53 (n.d.): 26.

 

• Simms, “Criminal Mediation Is the BASF of the Criminal Justice System.”.

 

 

 

 

• http://ijrar.com/upload_issue/ijrar_issue_20543522.pdf.

 

 

 

 

 

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[1]Clare Anderson, Mellissa Ifill, Estherine Adams, Kellie Moss, “Guyana’s Prisons: Colonial Histories of Post-Colonial Challenges,” September 8, 2020, https://doi.org/10.1111/hojo.12382.

[2] Clare Anderson et al., “Guyana’s Prisons: Colonial Histories of Post-Colonial Challenges,” The Howard Journal of Crime and Justice 59, no. 3 (2020): 335–349.

[3] Ibid.

[4] “Ministry of Finance – Government of the Republic of Trinidad & Tobago,” n.d., accessed July 16, 2021, https://www.finance.gov.tt/.

[5] “US State Department Report Highlights Neglect of Guyana Prisons,” Kaieteur News, April 28, 2016, accessed December 19, 2021, https://www.kaieteurnewsonline.com/2016/04/28/us-state-department-report-highlights-neglect-of-guyana-prisons/.

[6] “Prison Deaths COI…Facility Was Not Designed to House 1000 Inmates,” Kaieteur News, April 22, 2016, accessed November 11, 2021, https://www.kaieteurnewsonline.com/2016/04/22/prison-deaths-coifacility-was-not-designed-to-house-1000-inmates/.

[7] Ibid.

[8] Rabindra Rooplall, “Restorative Justice, Sentencing Guidelines Being Reviewed,” Guyana Chronicle, last modified September 14, 2020, accessed December 19, 2021, https://guyanachronicle.com/2020/09/14/restorative-justice-sentencing-guidelines-being-reviewed/.

[9] Ibid.

[10] Fiadjoe Albert, Alternative Dispute Resolution: Developing a World Perspective (London: Cavendish Publishing Limited, 2004), 2.

[11] Priscilla Chandra-Haniff, Law 3102: Alternative Dispute Resolution Manual (Turkeyen: University of Guyana, 2020), 23.

[12] Ibid.

[13] Mensah-Panford Prapjel, “Mediation in Ghana’s Criminal Legal System: A Proposal for an Extension to Cover Severe Offfences,” March 20, 2018, 5.

[14] Fiadjoe Albert, Alternative Dispute Resolution: Developing a World Perspective (London: Cavendish Publishing Limited, 2004), 122.

[15] Ibid.

[16] Ibid.

[17] MS Umbreit, RB Coates, and B Vos, Victim-Offender Mediation: Three Decades of Practice and Research, n.d., 282.

[18] Ibid.

[19] Civil Procedure Rules 2016 (CPR), Laws of Guyana, Part 26.

[20] Maryland Judiciary and State Justice Institute, “Impact of Mediation on Criminal Misdemeanor Cases,” September 2016, https://mdcourts.gov/sites/default/files/import/courtoperations/pdfs/criminalcourtimpacttwopagesummary.pdf ; https://www.mdcourts.gov/courtoperations/adrprojects.

[21] Ibid.

[22] Abiola Inniss, “Mediation in Caribbean Justice,” accessed November 11, 2021, https://www.mediate.com/articles/InnissA1.cfm.

[23] Albert Fiadjoe, Alternative Dispute Resolution: A Developing World Perspective.

[24] Ibid.

[25] Ibid; Marty Price, J.D., “Crime and Punishment: :Can Mediation Produce Restorative Justice for Victims and Offenders?,” Online Journal of Peace and Conflict Resolution 1(2) (1998), accessed November 11, 2021, https://www.trinstitute.org/ojpcr/1_2price1.htm.

[26] “Changing Lives Through Mediation – Jamaica Information Service.”

[27] Clare Anderson, Mellissa Ifill, Estherine Adams, Kellie Moss, “Guyana’s Prisons: Colonial Histories of Post-Colonial Challenges,” September 8, 2020, https://doi.org/10.1111/hojo.12382.

[28] Jennifer Batchelor, “Changes and Challenges: C.P. Court Administrator Carole Kirshner,” DEL. L. WKLY VOL. 7, no. No. 35 (n.d.): Sept. 1, 2004.

[29] Ibid.

[30] Ibid.

[31] Mr Russell Goldflam Et Al., “Members Of The Northern Territory Law Reform Committee,” N.D., 88.

[32] M. Jerry McHale, “Uniform Law Conference of Canada, Uniform Mediation Act, Discussion Paper: Civil Section (2000).” (August 2000).

[33] Canadian Bar Association and Task Force on Systems of Civil Justice, Report of the Canadian Bar Association Task Force on Systems of Civil Justice. (Ottawa: The Association, 1996).

[34] Clare Anderson, Mellissa Ifill, Estherine Adams, Kellie Moss, “Guyana’s Prisons: Colonial Histories Of Post-Colonial Challenges,” September 8, 2020, Https://Doi.Org/10.1111/Hojo.12382.

[35] Department of Justice Government of Canada, “The Effects of Restorative Justice Programming: A Review of the Empirical,” last modified January 1, 2000, accessed November 11, 2021, https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr00_16/index.html.

 

[36] Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons,” Kaieteur News, April 28, 2016, accessed November 11, 2021, https://www.kaieteurnewsonline.com/2016/04/28/us-state-department-report-highlights-neglect-of-guyana-prisons/.

[37] “Restorative Justice – Key Elements of Success – Secrétariat Des Conférences Intergouvernementales Canadiennes,” n.d., accessed November 11, 2021, https://scics.ca/en/product-produit/restorative-justice-key-elements-of-success/.

[38] Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons.”

[39] Ibid.

[40] Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons”.

[41] James Bonta, Restorative Justice: An Evaluation of the Restorative Resolutions Project (1998), 2018.

[42] Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons”.

[43] Government of Canada, “Department of Justice – Restorative Justice.”

[44] “Prison Deaths COI…Facility Was Not Designed to House 1000 Inmates.”

[45] Ibid.

[46] Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons”.

[47]Umbreit, Coates, and Kalanj, Victim Meets Offender.

[48] Hennessey Hayes et al., Making Amends: Final Evaluation of the Queensland Community Conferencing Pilot (Brisbane, Queensland: Griffith University, Centre for Crime Policy and Public Safety, School of Justice Administration, 1998).

[49] Sherman et al., “Experiments In Restorative Policing: A Progress Report on the Canberra Reintegrative Shaming Experiments (1998)”.

[50] Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons”.

[51] Albert Fiadjoe, Alternative Dispute Resolution: A Developing World Perspective.

[52] Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons”.

[53] Jharna Chatterjee and Royal Canadian Mounted Police Ottawa Ontario K1A 0R2, Report on the Evaluation of RCMP Restorative Justice Initiative: Community Justice Forum as Seen by Participants (Canada, 1999).

[54] Kaieteur Newspapers, “US State Department Report Highlights Neglect of Guyana Prisons”.

[55] Ibid.

[56] Mark S Umbreit and Robert B Coates, Mediation of Criminal Conflict: An Assessment of Programs in Four Canadian Provinces (Winnipeg, Man.: John Howard Society of Manitoba, 1995).

[57] Albert Fiadjoe, Alternative Dispute Resolution: A Developing World Perspective.

[58] Pfander, “Evaluating New Zealand’s Restorative Promise”.

[59] Ibid.

[60] “Sentencing Act 2002 No 9 (as at 05 October 2021), Public Act Contents – New Zealand Legislation,” n.d., accessed November 11, 2021, https://www.legislation.govt.nz/act/public/2002/0009/latest/DLM135342.html.

[61] S. Gordon Bazemore and Mara Schiff, Juvenile Justice Reform and Restorative Justice: Building Theory and Policy from Practice (London; New York: Routledge, 2011).

[62] Allison Morris and Gabrielle Maxwell, “Restorative Justice in New Zealand: Family Group Conferences as a Case Study”.

[63] New Zealand Ministry of Justice, “Restorative Justice Victim Satisfaction Survey: Research Report”, accessed November 11, 2021, //www.unodc.org.

[64] Ibid.

[65] G Maxwell, A Morris and T Anderson, “Can Restorative Justice Reduce Reconviction and Costs?” 13 (2000).

[66] Allison Morris and Gabrielle Maxwell, “Restorative Justice in New Zealand: Family Group Conferences as a Case Study,” accessed November 11, 2021, http://www.westerncriminology.org/documents/WCR/v01n1/Morris/Morris.html.

[67] Ibid

[68] Albert Fiadjoe, Alternative Dispute Resolution: A Developing World Perspective, 1st Edition (United Kingdom: Routledge-Cavendish, 2004).

 

[69] Ibid.

[70]   Don John Omale Phd, “Justice in History: An Examination of ‘African Restorative Traditions’ and the Emerging ‘Restorative Justice’ Paradigm” 2 (November 5, 2006).

[71]   Lezahne van Wyk, “Restorative Justice in South Africa: An Attitude Survey among Legal Professionals” (February 2015), accessed December 22, 2021, http://scholar.ufs.ac.za/xmlui/handle/11660/810.

[72]  Sally Merry, “The Social Organization of Mediation in Non-Industrial Societies: Implications for Informal Community Justice in America,” in The Politics of Informal Justice: Comparative Studies, ed. Richard L. Abel, vol. II (New York: Academic Press, 1982).

[73] A A Adeyemi, “Personal Reparations in Africa: Nigeria and Gambia (From Research Workshop on Alternatives to Imprisonment,” Office of Justice Programs 1 (1990): 3–18.

[74] “Rwanda Genocide: 100 Days of Slaughter,” BBC News, April 4, 2019, sec. Africa, accessed December 22, 2021, https://www.bbc.com/news/world-africa-26875506.

[75] Ibid

[76] Ibid

[77] “Gacaca Courts Achieved Their Objectives,” The New Times | Rwanda, last modified April 11, 2012, accessed December 22, 2021, https://www.newtimes.co.rw/section/read/51568.

[78] Lauren Haberstock, “An Analysis of the Effectiveness of the Gacaca Court System in Post-Genocide Rwanda,” Global Tides 8, no. 1 (January 1, 2014), https://digitalcommons.pepperdine.edu/globaltides/vol8/iss1/4.

[79] Organic Law (No. 31/2006).

[80]Martha Mutisi and Kwesi Sansculotte-Greenidge, “Integrating Traditional and Modern Conflict Resolution: Experiences from Selected Cases in Eastern and the Horn of Africa – Africa Dialogue Monograph Series No. 2/2012 – Ethiopia,” ReliefWeb (2012), accessed December 22, 2021, https://reliefweb.int/report/ethiopia/integrating-traditional-and-modern-conflict-resolution-experiences-selected-cases.

[81] Martha Mutisi, “The Abunzi Mediation in Rwanda: Opportunities for Engaging with Traditional Institutions of Conflict Resolution,” Africa Portal (October 1, 2011), accessed December 22, 2021, https://www.africaportal.org/publications/the-abunzi-mediation-in-rwanda-opportunities-for-engaging-with-traditional-institutions-of-conflict-resolution/.

[82] Organic Law (No. 31/2006).

[83] Martha Mutisi and Kwesi Sansculotte-Greenidge, “Integrating Traditional and Modern Conflict Resolution: Experiences from Selected Cases in Eastern and the Horn of Africa – Africa Dialogue Monograph Series No. 2/2012 – Ethiopia,” ReliefWeb (2012), accessed December 22, 2021, https://reliefweb.int/report/ethiopia/integrating-traditional-and-modern-conflict-resolution-experiences-selected-cases.

[84] Amanda Barratt and Pamela Snyman, update by Salona Lutchman, “UPDATE: Researching South African Law – GlobaLex,” accessed December 22, 2021, https://www.nyulawglobal.org/globalex/South_Africa1.html.

[85] Julena Jumbe, Gabagambi Julena, and Jumbe Gabagambi, “A Comparative Analysis of Restorative Justice Practices in Africa” (October 1, 2018).

[86] Christa Rautenbach, “Legal Reform of Traditional Courts in South Africa: Exploring The Links Between Ubuntu, Restorative Justice And Therapeutic Jurisprudence,” African Journal of International and Comparative Law 2 (December 1, 2015): 275–304.

[87] “Truth and Reconciliation Commission (TRC) | South African History Online,” accessed December 22, 2021, https://www.sahistory.org.za/article/truth-and-reconciliation-commission-trc.

[88]https://mirror.unhabitat.org/restorative_justice

[89] Ibid.

[90] Patrick Bashizi Bashige Murhula and Aden Dejene Tolla, “The Effectiveness of Restorative Justice Practices on Victims of Crime: Evidence from South Africa,” International Journal for Crime, Justice and Social Democracy 10, no. 1 (March 1, 2021): 98–110.

[91]   Prof Susan Coetzee, “Victim Rights and Minimum Standards for the Management of Learner Victims of Sexual Misconduct in South African Schools,” Child Abuse Research South Africa (CARSA) 14 (October 1, 2013): 37–49.

[92] Patrick Bashizi Bashige Murhula and Aden Dejene Tolla, “The Effectiveness of Restorative Justice Practices on Victims of Crime: Evidence from South Africa,” International Journal for Crime, Justice and Social Democracy 10, no. 1 (March 1, 2021): 98–110.

[93] Ibid

[94] Simms, “Criminal Mediation Is the BASF of the Criminal Justice System”.

[95] Mary Ellen Reimund, “The Law and Restorative Justice: Friend Or Foe? A Systemic Look At The Legal Issues In Restorative Justice,” Drake Law Review 53 (N.D.): 26.

[96] Mary Ellen Reidmund, “Law And Restorative Justice: Friend Or Foe? A Systemic Look At The Legal Issues In Restorative Justice,” Drake Law Review 53 (n.d.): 26.

[97] Simms, “Criminal Mediation Is the BASF of the Criminal Justice System.”