taylor truth narrative cilsa v40 n2 a3

8/3/2019 Taylor Truth Narrative Cilsa v40 n2 a3

1/22

*BA (Wits) BA Hons (Unisa) LLB (Wits) LLM (Unisa) LLM (Stockholm). AssociateProfessor Department of Jurisprudence Faculty of Law University of South Africa.1Hereafter referred to as the commission. I wish to express my gratitude to Prof Ramose forhis comments on the draft of this article.2 See Truth and Reconciliation Commission Report(1998) 1 TRC110. In my discussion on

the operation of truth in the South African Truth and Reconciliation process I have drawnheavily on Slabbert. N Slabbert In search of (unconveyable) truth: the truth and reconciliationcommissions notion of narrative truth and a victimary hypothesis Stellenbosch Law Review(2004) 15 (1) 103120. A number of criticisms can be levelled at the commissions definitions

of truth. For example Ramoses proposition is that truth-justice is a oneness and not abifurcation, a fragmentation of two realities subsisting independently of each other. We

The truth the whole truth nothing but the

truth: truth, community and narrative in

African procedural law.

David Taylor*

AbstractIndigenous South African legal disputes are resolved in a fundamentallydifferent way from typical Western legal disputes. In indigenous matters

attempts to arrive at the truth during legal proceedings occur in a

communal context. The communal context encourages a holistic narrative

style of participants in the proceedings, as apposed to the interrogative and

interruptive style of Western proceedings. The differences in style can be

attributed, in part, to different notions of truth and different understandings

of what the ultimate objectives of legal proceedings are. Typically Western

legal procedure attempts to arrive at truth in fact and truth in law so

called factual or forensic truth. Indigenous legal procedure takes a broader

understanding of truth. Indigenous legal procedure situates truth in fact and

truth in law in the broader context of other truths, including personal andnarrative truth; social or dialogue truth and healing or restorative truth.

__________

Understandings of truth in the South African Truth and Reconciliation

Commission

For the purposes of my discussion I will use the four basic notions of truth

identified by the South African Truth and Reconciliation Commission:1 One,

factual or forensic truth; two, personal or narrative truth; three, social or

dialogue truth and four, healing or restorative truth. 2


2/22

XL CILSA 2007216

therefore question the usage, truth and justice and suggest that it is this usage leads to theconstruction of the false tension between truth and justice. MB Ramose The philosophy ofthe truth and reconciliation commission of South Africa www.unam.na/centres/hrdc/docs/truth_and_reconciliation.doc. These criticisms fall outside of the scope of this paper. The

commissions four notions of truth although problematic are adequate for the purposes of thispaper.3TRC Report1 111.The correspondence theory of truth proposes that a belief, statement,

sentence or proposition will be true, provided an external fact corresponding to it exists. Thecorrespondence theory of truth has been criticised since any attempt to explain truth, as

correspondence will collapse, as one will have to inquire into the truth of the correspondingstatement. Frege The thought: a logical inquiry inP Strawon(ed) Philosophical logic (1967)19. The coherence theory of truth associates truth with verifiability that which coheres withthe body of accepted statements is thus true. At most the coherence theory of truth can be

regarded as a test of truth. In these explanations I have again drawn on Slabbert. Slabbert n2 above 106ff. See also Wiredus comments. K Wiredu The concept of truth in the Akanlanguage in EC EzeAfrican philosophy: an anthology (1998) 175 180.4Azanian Peoples Organisation (Azapo) and Others v President of the Republic of SouthAfrica and Others 1996 (4) SA 671 (CC) 684 at C. Mahomed DP: The Act seeks to address

this massive problem by encouraging these survivors and the dependants of the tortured andthe wounded, the maimed and the dead to unburden their grief publicly, to receive thecollective recognition of a new nation that they were wronged, and, crucially, to help them

to discover what did in truth happen to their loved ones, where and under what circumstancesit did happen, and who was responsibleRecords are not easily accessible, witnesses areoften unknown, dead, unavailable or unwilling. All that often effectively remains is the truthof wounded memories of loved ones sharing instinctive suspicions, deep and traumatising tothe survivors but otherwise incapable of translating themselves into objective and

corroborative evidence which could survive the rigours of the law5Note 3 above at 113.6Sachs applies the terms microscope truth and dialogue truth which correspond roughlywith factual and social truth respectively. A Boraine & J Levy (eds) The healing of anation (1995) 105. Judge Sachs is attributed with pointing out to the commission that there

are different orders of which truth did not necessarily exclude one another. DM Tutu No

future without forgiveness (1999) 33.

The four truths

Factual or forensic truth deals with verifiable truth. It is the typical Western

legal or scientific notion of bringing to light factual, corroborated evidence,

obtaining accurate information through reliable (impartial, objective)

procedures.3

Personal and narrative truth was not defined by the commission but it is to

some extent an acknowledgment of the persons testifying and the acceptance

of the validity of their stories.4

Social truth was seen by the Commission as best connecting Commissionsprocesses and its goals.5 Justice Albie Sachs highlights the importance of the

truth of experience that is the result of interaction, discussion and debate.

Broadly speaking this can be seen as social truth.6 Social truth places an


3/22

The truth the whole truth nothing but the truth 217

7TRC report1 114.8Ibid.9

True can also be an evaluative term which functions as a signal of assent or concession, oradmission as in too true, quite so, I agree. Wiredun 3 above at 177.10For the purposes of this paper general comments about Western procedure can be made inspite of the acknowledged differences in common law and civil law countries. For althoughthe procedures are different in the two jurisdictions the notions of truth and the methodsemployed in its establishment are fundamentally the same in both civil law and common law

courts.11WJ Hosten, AB Edwards, F Bosman & J ChurchIntroduction to South African law and legaltheory (1997) 12501253.12RB Mqeke & LP Voster Procedure and evidence in JC Bekker,JMT Labuschagne & LP

Voster (eds)Introduction to legal pluralism: Part 1 customary law (2002) 157175. Disputesare also settled within family groups, age groups before kings and other forums.

emphasis on the processes by which truth is arrived at, because, amongst

other things, these processes affirm the dignity of human beings.7

Healing and restorative truth8 operates in the context of human

relationships and also aids in restoring of the dignity of victims by publicly

acknowledging the abuses suffered.

I will use the framework of these four truths9 to explore the notion of truth in

African legal proceedings.

African procedural lawBefore the role of truth in African legal proceedings can be discussed, some

general remarks about the nature, operation and objectives of African legal

proceedings must be made.

My focus in this paper is on the Bantu of Southern Africa, there is an

inherent problem with generalising about law in Africa, let alone Southern

Africa. Even within identifiable linguistic groups there are variations from

area to area. Yet there are sufficient similarities to speak of African

procedure in a general sense just as there are enough similarities in Western10

legal systems to speak in generalities.11

Sequence of events

As the basis for a general description of the sequence of events in African

law the example of a dispute brought before a headman will be used.12

Once a dispute has been brought to the attention of the headman the matter is


4/22

XL CILSA 2007218

13Ibid. The public nature of the proceedings and the participation of persons in attendance isan important aspect of the proceedings to which I will return later.14Great latitude was allowed here: he could be as discursive as he wished and could not beinterrupted or called to order. D Hammond-TookeThe roots of black South Africa (1993) 93.Mqeke & Voster n 12 above at 163167. AC MyburgPapers on indigenous law in SouthernAfrica (1985) 75.15For an interesting account of the skill in argument, logical reasoning and the rigorousapplication of mental faculties in a Xhosa legal dispute see Revd Henry Dugmores 1850

report quoted in W Holden The past and future of the kaffir races (1866) 177178.Hammond-Tooke n 14 above at 9394.16The description of the sequence of events is taken from a variety of sources: Mqeke &Voster n 12 above. Hammond-Tooke n 14 above at 90ff. TW BennettA sourcebook of Africancustomary law for Southern Africa (1991). I Currie Indigenous law Constitutional law ofSouth Africa (1996). B Goldin & M Gelfand African law and custom in Rhodesia (1975).

Myburgh n 14 above. I SchaperaA handbook of Tswana law (1970). I Schapera The Tswana

(1968). SM SeymourBantu law in South Africa (3ed 1970).17FC De Beer Inheemse prosesreg: n antropologiese perspektief (1996) 19 SA Journal ofEthnology 85. Mqeke & Voster n 12 above.18Hammond-Tooke n 14 above at 90: The principle of reconciliation reflects African legaltradition and is a distinctive feature of indigenous law. Mqeke & Voster n 12 above.

heard in a public13 meeting place. The headman outlines the circumstances

under which the dispute was brought to his attention. The

plaintiff/complainant is requested to state his grievance after which the

defendant/accused is called upon to reply. When giving evidence the speaker

is not interrupted and may be as discursive as he wishes.14 After giving their

initial statements both parties could be cross examined by the headman,

assessors and anyone else present. Witnesses are then called upon to make

their contribution. After the parties and witnesses have given evidence and

have been cross examined, the matter is opened for general discussion.15

Speakers are given latitude as to the nature and scope of their contributions.

After the general discussion the assessors give their opinions. Finally theheadman would sum up the various views expressed.16 The headman is not a

judge in the Western sense of an autonomous arbiter of matters. In African

procedure the presiding officer gives a summation of the views advanced by

those who spoke at the trial, including the public and the parties involved. He

does not judge nor does he arbitrate. The presiding officer is constrained by

what took place during the proceedings and gives expression to the

consensus and reconciliation finally arrived at.17

Function of legal proceedings

The main task of the courts, then, was not to decide an issue in terms of legal

abstractions (as in the west) but to ensure that reconciliation has takenplace.18


5/22


19Krige notes that the Lovedu court procedures aim, not at settling legal issues, but effecting

compromises and reconciliation where the khoro (court) relies not on force but on friendlyadjustments. EJ Krige, JD Krige The realm of the Rain Queen (1943) 69. Hammond-Tooke

n 14 above at 99.20In Southern Africa see Mqeke & Voster n 12 above. In relation to the Ibo in Nigeriasee I Nzimiro Studies in Ibo political systems: chieftaincy and politics in four Niger states(1972) 118119. N Okereafoezeke Modes of implementing native court judgments in a post-

British Igbo (Nigeria) community (a research synopsis).http://www.ecu.edu/african/sersas/Papers/OkereafoezekeNonso8Nov01.htm21Okereafoezeke n 20 above.22S du Boulay Tutu: Archbishop without frontiers (1996) 99. See too Asmals comments thatconstructive provocation and healthy recrimination are vital to reconciliation. He argues

that it is a misperception to think that justice and reconciliation are in conflict since a justand moral appraisal of the past is the true life blood of reconciliation. Referring to right-wingobjections to the commission, Asmal states: They think reconciliation means painless

forgetting rather it is the facing of unwelcome truths in order to harmonise incommensurate world views. K Asmal, L Asmal & RS RobertsReconciliation through truth:

a reckoning of apartheids criminal governance (1996) 14, 46, 53.23DM Tutu No future without forgiveness (1999) 51. It is rather curious that in choosinganother name for the official title of the Act the term truth was preferred to justice. One wouldexpect the retention of justice not because it was already common to many church bodies in

South Africa, but more importantly because justice is historically the core of the liberationstruggle, at least from the point of view of those who have experienced injustice at the handsof colonialism and its various faces and phases in the history of South Africa. As a matter offact, however, we have national unity excluded from the name TRC and justice is simply

omitted. MB Ramose The philosophy of the Truth and Reconciliation Commission of SouthAfrica www.unam.na/centres/hrdc/docs/truth_and_reconciliation.doc.

African legal procedure19 aims at resolving the matter amicably, reconciling

the parties and reaching a decision that can be accepted by all.20 The need for

the acceptance of decisions by all parties stems from the understanding that

legal matters as mechanisms of justice are aimed primarily at peacemaking

rather than the allocation of rights between disputants21. Although the aim is

to reconcile the parties with one another and with the broader community,

traditional legal proceedings do not exclude confrontation. Many make the

point that confrontation is essential if true reconciliation is to be achieved.22

Tutu adds that [t]here is another kind of justice, restorative justice, which

was characteristic of traditional African jurisprudence. Here the central

concern is not retribution or punishment but, in the spirit ofubuntu, healingof breaches, the redressing of imbalances, the restoration of broken

relationships.23 Confrontation is viewed in the spirit of bringing balance

rather than simply punishing the wrongdoer. In this sense traditional

indigenous hearings are not overly concerned with who is right and who is


6/22

XL CILSA 2007220

24The primary aim of an indigenous hearing is not to prove who is right and who is wrong: itis to determine truth and to reconcile the parties with one another, as well as with the courtand the community. Mqeke & Voster n 12 above.25Aachaye Kweli Huirudia: He who leaves truth behind, returns to it (ie a person who doessomething good somewhere, when he comes back people receive him/her with gladness). LKalugila Swahili proverbs from East Africa ([Methali KiSwahili Toka Afrika Mashiriki

http://www.afriprov.org/resources/dailyproverbs.htm.26A debt or a feud is never extinguished until the equilibrium has been restored, even if

several generations elapse. K MBaye The African conception of law (1974) 2International encyclopedia of comparative law 138.27For articles on African cosmologies see: D Chidester, C Kwenda, R Petty, J Tobler, DWrattenAfrican traditional religion in South Africa: An annotated bibliography (1997). N

Munemo Traditional Religion and Christianity in Southern Africa (1994).http://www.kahome.co.uk/ngonim.htm28Justice is determined by the supernatural forces. Their determination seeks to restoreharmony and promote the maintenance of peace. Justice as the restoration of equilibrium isa central element of the ubuntu philosophy of law. This determination by the supernatural

forces is consistent with the metaphysics ofubuntu law. This consists in a triadic structure ofthe living, the living dead (the supernatural forces) and the yet-to-be-born. MB Ramose AnAfrican perspective on justice and race http://www.polylog.org/them/2/fcs6-en.htm. See too

MBaye n 24 above at 138.29My use of the phrases restores harmony; promote the maintenance of peace, restorationof equilibrium and reconciliation are rather loose and imprecise. It is beyond the scope ofthis paper to make a proper analysis of these concepts of African thought and belief. Someof these phrases relate toto and emanate from cosmological understanding but also radiatedown to everyday existence of humans and the social institutions in which they operate. To

restore harmony; promote the maintenance of peace, restoration of equilibrium andreconciliation take on a different aspect when applied to legal proceedings than they wouldwhen applied to overall cosmology. Yet the reconciliation in the legal process is intimatelylinked to reconciliation in the greater cosmology. Therefore as a matter of convenient

shorthand I will use the word reconciliation to include legal and cosmological restorationof harmony; promotion and maintenance of peace and the restoration of equilibrium.

wrong24 but are more concerned with correct behavior25 by persons

involved in the dispute as well as the broader community.26 Traditional legal

proceedings create an expectation that correct behaviour must be followed

before, during and after the resolution of a dispute.

The importance of correct behaviour and reconciliation in African

procedure is linked to two important elements of African life; first, African

cosmology which espouses the need to restore balance, and second, ubuntu

a multidimensional notion which infuses African law.

CosmologyIt is beyond the scope of this paper to explore or define African cosmologies

in a way that would do them justice.27 It is sufficient to say that one aspect of

African cosmology is the recognition of the need to restore harmony and

promote the maintenance of peace28 and the restoration of equilibrium.29


7/22


30Reconciliation contains this kind of existential rebalancing, too. Asmal n 22 above at 51.

JH Driberg has formulated in his article The African conception of law (1934) 16Journalof the Society of Comparative Legislation 12, that African law is positive and not negativeand that its whole object is to maintain an equilibrium. Therefore, the penalties aredirected, not against specific infractions, but to the restoration of this equilibrium. This process not only takes place in the community of the living, but also in a constant

communication between the living and the living-dead (ancestors).31My explanation may tend to the use of vague and obfuscating phrases such as: everydayhuman existence between human beings and influences or entities that are assigned to

cosmological forces. These forms of expression are specifically formulated with the intentionof avoiding more problematic terms that may seem more clear and precise but are misleadingwhen employed in the African context. Terms such as supernatural as an alternative toinfluences or entities that are assigned to cosmological forces is problematic since Africancosmologies do not easily make a clear separation between the natural world and the world

that is not natural (ie supernatural). What Westerners would see as supernatural beings areconsidered part of the world in much the same way as plants, animals or living persons. Forthis reason too I have avoided the use of living as an alternative to everyday humanexistence between human beings since some cosmological forces are understood by Africansto be living even though their bodies have died according to Western tradition.32Tutu n 23 above at 34.33Ramose n 28 above). Tutu n 23 above at 35.

One source of the need for reconciliation is cosmological in that

reconciliation restores cosmological equilibrium30, but at the same time

reconciliation restores the equilibrium of everyday human existence between

human beings. There is also the restoration of equilibrium and

reestablishment of harmony between everyday human existence and

influences or entities that are assigned to cosmological forces.31

Ubuntu

Ubuntu as a notion defies unitary and finite definition.32 A good working

description in the legal context is that; Ubuntu is the principle that we act

humanely and with respect towards others as a way of demanding the samefrom them. Similarly, law to be worth its name and to command respect must

evidence ubuntu.33

This describes the operation ofubuntu in the legal context. There is no real

specificity as to what acting humanely and with respect means. Failing to

advance a meaning forubuntu beyond these vagaries is appropriate and an

indicator of the nature and operation of the notion. Typically, ubuntu

specifies no limits to what acting humanely and with respect means in a

legal context it sets no minimum requirements or absolute standards. An

important reason for evasion of specifics is that when ubuntu operates in the

legal environment, it is linked to the specific circumstances of the legal


8/22

XL CILSA 2007222

34References to indigenous law and precedent are not automatically relied on in African legalprocedure. JC Bekker & IP Maithufi The dichotomy between official and customary lawand non-official and customary law (1992) Tydskrif vir Regswetenskap 4760. GJ van

NiekerkThe interaction of indigenous law and Western law in South Africa: a historical andcomparative perspective (unpublished LLD thesis Unisa) (1995) 2436. Mqeke & Voster n12 above at 163.35Thus with regard to the application of justice it accords primacy to the concrete, the worldof the living. In this sense it is different from Western legal thought which apparently stresses

the abstract. Ramose n 28 above. Bekker & Maithufi n 34 above at 49.36In his discussion ofubuntu Tutu explains Social harmony is for us thesummum bonum thegreatest good. Tutu n 23above at 35. Where communal contentment is the absolute

measure of values. N Mandela The struggle is my life IDAF ANC Youth League Manifesto(1944). http://www.anc.org.za/ancdocs/history/ancylman.html.37Umuntu means the emergence ofhomo loquens who is simultaneously a homo sapiens.Umuntu is the maker of knowledge and truth in the concrete areas, for example, of politics,religion and law. Ramose n 28 above.38Ibid. Restoration of equilibrium both legally and cosmologically.39The idea that life is a constant flow and flux means that it cannot be decided in advance thatcertain legal rules have an irreversible claim to exist permanently. This speaks to thereasonableness ofubuntu law even though it might be unformalised. In this sense ubuntu lawis a dynamology in search of justice as the restoration of equilibrium. Ramose n 28 above.

FJ De Tejada The future of Bantu law (1979) 11ARSP Beiheft Neue Folge 304.40Tutu n 23 above at 35.

dispute.34 Each dispute will evidence ubuntu within the peculiarities of that

specific dispute. Therefore, African legal procedure seeks the expression of

ubuntu in the specificity and reality of the dispute at hand and not in pre-

determined overarching abstractions.35

Focusing on the particular and specific African legal procedure recognizes

three important realities when it comes to reconciliation (the main objective

of legal hearings36). First, in matters of law, the maker of knowledge and

truth is, in part, humankind, both as homo sapiens (physical human beings)

and as umuntu (human beings in their humanity).37 Second, the specific

methods and means of reconciliation

38

can not be predetermined, decided inadvance, or fixed.39 Thus reconciliation is arrived at by specific methods and

means determined by the application ofubuntu to the particularities of the

dispute at hand. Third, that an individual belongs in a greater whole and is

diminished when others are humiliated or diminished40

Although in African legal proceedings, the specifics of arriving at

reconciliation are not decided in advance, general notions such as acting

humanely and with respect often result in African legal procedure adopting

certain methods in the resolution of disputes. An example of such a practice


9/22


41As I have argued this approach not only aids in arriving at reconciliation, but in itself is therecognition of humanity of all those involved in the proceedings, as parties to the dispute or

otherwise. Reconciliation itself is an expression ofUbuntu as are the methods and meansemployed to achieve reconciliation.42Hammond-Tooke n 14 above. Mqeke & Voster n 12 above at 93.43M Gluckman Order and rebellion in tribal Africa (1963) 192. The law demands right andreasonable action: morality asks for right and generous action.44The point should also be made that Ubuntu in its reconciliatory aspect is also an end in itself.45K Sangster Truth commissions: the usefulness of truth-telling Australian Journal of

Human Rights http://www.worldlii.org/au/other/ahric/ajhr/V5N1/ajhr515.html.46Ibid.47Ibid. Another distinction made is to separate the courts role in criminal guilt from the

commissions role in acknowledging moral or political responsibility. Asmal n 30 above at13.

is allowing parties to speak at length without interruption and limitation.41

Another example is where a concerted effort is made not to establish blame,

but rather to ensure and aid the parties to accept the decision with good

grace.42 Participants make enormous effort in convincing the relevant party

that he has behaved unreasonably while at the same time pressurising the

offended party to forgive the offence. In other words both parties are

entreated to be reasonable and generous. Gluckman describes this as an

understanding that; a man should not insist on the letter of his rights, and he

should be prodigal in meeting his obligations.43

To summarise: African legal procedures rely on ubuntu as a means

44

toreconciliation and the restoration of balance in terms of African

cosmological understanding. Reconciliation and the restoration of balance

are multifaceted with the result that reconciliation in a legal dispute is more

than the reconciliation of the parties who raised the dispute. There is also an

element of restoring the balance in the community and the greater

cosmological order. Recognising the African cosmological context helps us

understand some of the powerful forces that drive the resolution of African

legal disputes. The African cosmological context invites African legal

procedures to be reconciliatory, communal and emotive, and it also

influences the operation of truth in the proceedings.

In typical Western understanding, truth is seen as the tool to achieve

positive legal justice 45, truth is also identified in itself as a form of

social justice.46 In this way some Westerners seek to distinguish legal

proceedings (legal justice) relating to human rights abuses, from Truth and

Reconciliation Commission proceedings (social justice).47 At the centre of

these understandings is an assumption that social justice is purchased for the

price of legal justice. This assumption is driven by an acceptance that it is


10/22

XL CILSA 2007224

48By means of this question we suggest that the omission of justice from the popular nameof the commission speaks to the imposition of an artificial tension between truth and justice.It is as though the path of truth is necessary and sufficient to achieve reconciliation without

recourse to justice. By this reasoning, justice is made to appear as an equally necessary andsufficient imperative of reconciliation and as such renders resort to truth unnecessary. This

then is the situation of either the truth or justice but not both. MB Ramose The philosophyof the Truth and Reconciliation Commission of South Africa www.unam.na/centres/hrdc/docs/truth_and_reconciliation.doc.49Much public debate has falsely pitted truth against reconciliation this is a

fundamental misunderstanding of the entire concept of reconciliation. Asmal n 30 above at46.50Often Western notions of truth place factual and narrative truth at odds. Neither is itclear as to what extent the Commission required verification of what is told, in other words,what the relationship between factual or forensic truth and personal and narrative truth is.

That these two notions of truth can be at odds with each other is clear. The act of story tellingfalls in the domain of the subjective, which is inherently in conflict with finding factual orempirical truths, which relate to an objective or impartial process. Slabbert n 2 above at 108.

Although it is acknowledged that empirical sciences are not free of subjective idiosyncrasies.51The application of truth to achieve justice is indeed what international and domestic legalsystems are based upon, yet in the context of truth commissions this norm has further, oftenprofoundly emotive, dimensions. The most complex of these being the investment of truthwith the power to achieve this justice and, simultaneously, to heal both the nation and theindividuals who have suffered. Sangster n 45 above.52only upon a foundation of truth will it be possible to meet the basic demands of justice andcreate the necessary conditions for achieving true national reconciliation Supreme Decree No. 355 (1990) Ministry of Justice: Undersecretary of the Interior: Creation of theCommission of Truth and Reconciliation

http://www.nd.edu/~ndlibs/eresources/etexts/truth/supreme_decree_no._355.html orhttp://www.usip.org/library/tc/doc/reports/chile/chile_1993_decree.html.

mainly empirical truth that achieves legal justice.48 It is assumed that if legal

justice is sought, empirical truth may be a useful tool but if social justice is

sought then it is sufficient that the empirical truth be established or that social

truth be cultivated. Essentially this type of thinking excludes social truth

from legal justice. African legal procedure has a more expansive

understanding of social justice, including effecting reconciliation and re-

establishing the order of things, involving the community and affirming

humanity in the proceedings. This understanding of social justice includes,

but is not equated with empirical truth. African legal procedure and notions

of social justice are processes which require truth in its broadest senses;49 that

are empirical, narrative,

50

social and restorative.

51

From an Africanperspective, Truth and Reconciliation Commissions are better understood as

primarily reconciliation-seeking bodies aiming to re-establishing the order of

things, by involving the community and affirming humanity. The truth they

seek is not merely an end it itself or the affirmation of social justice. The

truths expressed are also agents of reconciliation.52


11/22


53EE ObengEighteenpence (1943) 3744.54Ibid.

The trial of Konaduwa: African procedural law in Eighteenpence by EE

Obeng

I will now turn my discussion to the reconciliatory, communal and

emotional, aspects of African legal procedure, by drawing on an excerpt

from a novel titled Eighteenpence by Obeng.53 In my discussion I will use

the four notions of truths espoused by the South African Truth and

Reconciliation Commission.

Konaduwas trial

In the story Eighteenpence54 published in 1945, one of the characters

Konaduwa appears in court hoping to reclaim valuables and money whichhad been accidentally knocked into a river by a fellow passenger on a ferry

ride. During the proceedings Konaduwa becomes angry and verbally abuses

the court in general. A constable on duty orders her to be silent:

She turned on him and said that if he had lost a hundred and fifty pounds

through anothers folly, would he like to be shouted at with Silence?At the

constables insistence she is immediately charged with contempt of court for

insulting and abusing the constable. The Registrar reads the charge and

immediately asks: Are you guilty or not guilty? Is this what the

English Court is like? she demanded with astonishment. When a case has

not been tried, how can one say whether one is guilty or not. Even if the case

has been tried, how can you expect one to pronounce judgment against

oneself? Tell the Commissioner that I cannot possibly answer that question.

As a consequence the registrar formulates an additional charge and reads it;

That you on the fourteenth day of July 1913, at Asakwa, did speak against

the established procedure of the British Court, and also against the District

Commissioner, who is the Kings Judge. Are you guilty or not guilty?

If you ask me this question a hundred times, I will still make no reply.

Even if I knew I were guilty, I should never admit it and ask you to

pronounce judgement on me. If I say I am not guilty, you would not let me

go scot free; but if I say I am guilty, you will pronounce on me at once. TheGovernor sent you here to decide cases before you get yourpay, and if you

have not fully learned how to try cases, and want to ask me how you should

pronounce judgement, you should go back to your own country to learn

properly and find out how to conduct your business, without perplexing a

woman by asking her if she is guilty or not guilty.


12/22

XL CILSA 2007226

55For a similar situation in the Western context see A Camus, The outsider(1982).56The discussion of emotion in this article does not proceed from Senghors attribution of

emotion as being characteristically African and that of rationality as Western. The propositionis not that Africans are innately inclined to be emotional but rather that in indigenous Africanlegal proceedings recognise the place and value of emotions. See L Senghor Negritude andmodernity or Negritude as a humanism for the twentieth century in R Bernasconi (ed) Race(2001) 143166. L Senghor On Negrohood: psychology of the African Negro in AG MosleyAfrican philosophy : selected readings (1995) 116147. For criticism of Senghors viewpointsee F FanonBlack skin, White masks (1986).57AM Hoernl Magic and medicine in The Bantu speaking tribes of South Africa by ISchapera (1946) 221246. Hoernl points out that the scientific thinker in the Westerntradition strives to detach themselves from emotions, whereas the Bantu strive for unscientific

thinking and immerse themselves in emotions.58Gluckman n 43 above at 192.

I believe that the accused is of unsound mind, said the Commissioner to

Mr Jones.

Konaduwa is consequently sent to Accra for mental examination, fortunately

sanity prevails and Konaduwa is found mentally sound and returns to the court

only to be told that the contempt charges have been dropped.55

This short description of Konaduwas experience before an English court

highlights contrasts between African and Western legal procedure. Obeng

skilfully questions the soundness of Western court procedures by placing

Konaduwas experiences at the centre of the action. Her actions, reactions

and comments expose the Western legal procedures and simultaneously offerinsights into their African equivalents. Each of the interactions between

Konaduwa and the English court provide a starting point for a more general

discussion of African legal procedure.

Narrative truth and emotion56

Konaduwa becomes angry and verbally abuses the court in general. Her

outburst illustrates the tendency of African legal procedure57 to encourage

open and forthright emotional engagement. Gluckman points out the evident

emotive content of comments of the headmen in cases entreating both parties

to be reasonable and generous.58 Although decorum is an important part of

African procedure, the expression of emotion is not regarded as an

inappropriate aspect of witness conduct which threatens the objectivity of

what is being said, as is the case in Western courts.

There appears to be a clear link between objectivity and truth in Western

procedure, expert, and other witnesses are expected to keep unruly feelings to


13/22


59These notions may stem from scientific notions of objective fact that gained ascendancy inthe West from the time of the Enlightenment. Hoernl n 54 above at 224.60Emotional engagement amongst Africans is a consequence of concern of the impact ofevents on the individual and group. In a sense for the African existence is always at stakewhereas detachment from emotion and scientific thought that attempts to make no valuestatement creates the impression that events have no bearing on human life, distinctionsbetween good and bad. Hoernl n 57 above at 224.61It is clear that disputes were seldom purely between individualsper se , but between groups each dispute was in effect a national emergency. Hammond-Tooke n 15 above at 90.62Narratives exist through language, and as representations of experiences or episodes, they

are of course mimetic. Just as linguistic symbols stand in for things, the victim representsmore than his or her ordeal and becomes a surrogate for the violence of the communitySlabbert n 2 above at 111.63The impossibility of narrative is closely related to the destruction of the victimssubjectivity. An attempt to narrate the trauma may also lead to a victim reliving thedestruction of his or her own subjectivity. Slabbert n 2 above at 116.64In relation to the South African Truth and Reconciliation Commission hearings Du Toitwrites: This truth not only contributes to the reparation of damage inflicted in the past, butwill serve to prevent the recurrence of serious abuses in future. This goes hand in hand withjustice as recognitionthe justice involved in the respect for other persons as equal sources

of truth and bearers of rights. Du Toit The moral foundations of the South African TRC inRI Rotberg & D Thompson (eds) Truth v justice: The morality of truth commissions (2000)

a minimum and to stick to giving the facts.59 The contradiction stems from

certain assumptions about truth in the Western judicial process. In Western

courts truth is seen largely as empirical truth. It seems peculiar that witnesses

are asked to swear to tell the truth, the whole truth and nothing but the truth

when the narrative truth the truth of how they feel is so systematically

suppressed.

In African legal procedure expression of emotion shows an engagement with

the matter at hand and with society at large.60 Legal disputes are, therefore,

not merely between the individuals involved but include the community in

general.

61

It is accepted in African procedure that expression of emotion isboth understandable and necessary as a confirmation of humanity. Emotion

in a legal context is a sign or reminder of the humanity of the person

expressing the emotions, for example that they are affected by the actions of

others.62 In other words the emotions expressed are a call to others to

recognise the effect the events have had on another human being. In this way

observers affirm the speakers subjectivity.63 Expression of emotion is also a

sign or reminder of the humanity of those observing the expression of

emotions. Observers are called to empathise with the person expressing

emotions to place themselves in that persons situation and accept that they

too could be expressing that same emotion. They are also enjoined to

contemplate actions they may have taken (or may, in future take) whichcould cause a similar effect on another.64 In essence observers are called by


14/22

XL CILSA 2007228

136.Slabbert n 2 above at 112.65The victimary hypothesis is an antidote, a true remedy to the cognitive nihilism that hasrecently beguiled as many theologians and philosophers as literary critics. It confides in theirreducible dichotomy of victim and persecutor, and no critique of difference, however benton undecidability, is proof against it, for indifference to that difference sanctions the

persecution of all and threatens the survival of all. AJ McKenna Violence and difference:

Girard, Derrida and deconstruction (1992) 135.66Wiredu makes a clear distinction between truthfulness and a purely cognitive concept of

truth. Wiredu n 3 above at 176.67This approach is often also taken with regard to non-emotional elements of a personsevidence and so oath taking is not required. Yet empirical facts are valued in testimony andalthough a person is not punished for telling a lie his testimony is regarded as less reliable.Mqeke & Voster n 12). MW PrinslooInheemse publiekreg in Lebowa (1983) 298.68Jacques Derrida comments that a person who testifies offers himself and testifies to his

faith by offering himself. M Blanchot (transl Rottenberg) The instant of my death & Derrida

Demeure (2000) 3841.69It is around the victim that our cognitive and moral impulses conjoin, that concern for factand value cease to oppose each other. McKenna n62) 135.70Kgomo e swarwa ka dinaka, motho o swarwa ka leleme.(A cow is caught by the horns,a person by the tongue.) Prinsloo n 64 at 284.

emotion to become involved and take responsibility,65 and in the process are

transformed from observers into participants. The expression of emotion is

an element of narrative truth and also has a place in social truth and

restorative truth.

Determination of emotional truth

African procedure seldom enquires into the truthfulness66 of the emotions, ie

the factual/empirical determination as to whether the person expressing the

emotions actually had the feelings expressed.67 The truthfulness (actuality)

of the emotional state of persons giving evidence in indigenous procedure is

generally acknowledged.68

The truth of emotions in this context is notcentred on the empirical or factual, but rather on the recognition of a reality

of the existence of emotions.69 Outside of the realm of emotion, however,

empirical facts remain very relevant in African legal proceedings.70

Western courts, on the other hand, often focus on the truthfulness/actuality of

emotion and attempt to use empirical investigation to determine whether a

person who makes claim to certain feelings actually had the feelings

professed. In Western courts, emotions are seen as most relevant to

motivation, most commonly in criminal cases. Was the criminal or witness

angry, jealous or greedy, callous, malicious or indifferent?

Western courts often attempt to make empirical determinations of the

actuality of emotions through cross examination and discrediting of


15/22


71The only truth revealed by victims narratives, are universal truths about human nature,

the human condition, and human suffering. Slabbert n 2 above at 117. N Ndebele Memory,metaphor and the triumph of narrative in S Nuttall & C Coetzee (eds) Negotiating the past:The making of history in South Africa (1998) 1928.72The South African Truth and Reconciliation Commission evidenced a similar attitude to the

stories of victims despite the fact that many of these stories may be unverifiable, thesenarratives are acknowledged as sources of truth Slabbert n 2 above at 109.

witnesses. This process is described as determining the truth about the

emotions of the person. We are all familiar with the television drama lawyer

who after listening to a witness complain of how heartbroken she was at the

death of her husband, produces a photograph of her dancing at a nightclub

days after his death. The photograph is the factual/empirical information that

supposedly evidences the truth about her emotional state. Aside from the

criticisms that emotional states vary, there may be a plethora of other reasons

to explain the widows behaviour.

The empirical or actual determination of the existence of a particular

emotion in an individual, locates emotion both in the empirical and theindividual. However the validity and value of emotions expressed by the

person concerned is more than establishing the actual existence of an

emotional reality in an individual. Emotions exist within a broader context;

they are an affirmation of our humanity regardless of their empirical

actuality. In other words whether a particular person empirically/actually

felt the emotions does not override the reality that emotions are true and

have an existence that must be acknowledged outside of the context of any

one individual. Emotions are liable to be felt by anyone and everyone, to

recognise this is to recognise the humanity in ourselves and others. In

African procedure the truth of emotions expressed can not simply be denied

by the proof that a certain person lacks the actuality (empirical verification)of the emotions they espouse. The acceptance of the expression of emotion in

African procedure is an acknowledgment of this larger truth of emotions71

that makes up a part of narrative truth, social truth and restorative truth.72

Emotions must be validated as an affirmation of our humanity even where

the actuality of the existence in a particular individual may be suspect .

Narrative truth and silence

Being silenced being silent

A constable on duty orders her to be silent.

In Western courts many rules of evidence and procedure have been

formulated to exclude irrelevant and tangential information. It is understood

that these rules ensure that only pertinent information is presented to the


16/22

XL CILSA 2007230

73Truth never finishes. Birom proverb (Central Nigeria). EJ Alagoa An African philosophy

of history in the oral traditionhttp://nigerdeltacongress.com/articles/an_african_philosophy_of_history.htm. In African legalprocedure time cannot stand in the place of truth. Mqeke & Voster n 12).74 That ones preference for one definition of truth rather than another will arise as a resultof the objectives one intends to pursue, be it logical, semantic, pragmatic, or whatever .It is the very idea of the validity of knowledge, of the authenticity of human relationships, of

the genuineness of value as the contents of discourses. Slabbert n 2 above at107.75Tutu comments that allowing abuse survivors the chance to tell their stories allows their individuality and inalienable humanity to be acknowledged. Tutu n 6 above.76The South African Truth and Reconciliation Commission also took this approach where

witnesses were not cross-examined by the Commission and unless glaring inconsistencies andfalsehoods existed, their oral testimony was generally accepted. TRCn 2) 140149.

court. Pertinent information is that information which assists the court to

arrive at the empirical truth about the case; the truth about the facts of the

case (what happened) and the truth about the law. This means that persons

giving evidence can and must be interrupted and silenced when they digress

from what is important to the empirical facts and law of the case.

In traditional Southern African legal proceedings witnesses are rarely

interrupted. The nature of the proceedings is to allow each person to have

their full say no matter how tangential or irrelevant what they say may

seem.73 To the Western mind this may seem inefficient, unnecessary,

unproductive and confusing. This is true if the sole objective of theproceedings is to empirically to collect information relating to facts and law.

But African legal procedure starts from an entirely different premise.74

Reconciliation (restorative truth) is an important part of the procedure, and

therefore obtaining empirical facts is only part of the process. Affirmation of

the humanity of the witness is achieved by allowing them to give full

expression of themselves during the proceedings,75 delivering their narrative

is not subjugated to the extraction of so-called relevant empirical

information.76 In other words, narrative truth is given greater importance in

African legal proceedings than in Western legal proceedings. Narrative truth

is regarded (along with empirical truth) as catalyst for social truth and for the

advancement of restorative truth.

Allowing the uninterrupted giving of evidence gives full expression to the

audi alteram partem rule and also advances the validation of the speakers

perspective. The speaker can introduce or mention matters that from a

Western perspective have nothing to do with the case at hand (such as

marriages between parties or behaviour of extended family members at

social functions). Allowing these matters before the court is a reminder of the


17/22


77Obeng n 52) 3744.78See Lyotards comments on the role of silence as signs of history. JF Lyotard (transl Van

den Abbeele) The diffrent phrases in disputeTheory and history of literature vol 46(1988).79African procedure often draws a negative inference from the silence of a person participatingin the proceedings. A refusal to speak in legal proceedings is described by the Swazi as anattempt to hide a stick under the manure of the cattle kraal ( indvuku isenqubeni). LP Voster

Inheemse bewysreg van die Swazi van die Mswati- en Mlondozi-gebied (MpumalangaProvinsie, Suid Afrika) (1996) 19 SA Journal of Ethnology 90.

connectedness of the society and the concomitant importance of resolving the

matter amicably. In some instances these matters are evidence of correct

behaviour. In some way the speaker is saying; My family and I are a part of

this community and have an interest in resolving the dispute. Our lives are

intertwined. Such an abstracted statement would be brought home by the

naming of the people and occasions where interactions, took place.

In Eighteenpence77 Konaduwa asks Would [the constable] like to be

shouted at with Silence? The ambiguity of the question is a skilful

reminder that being told to be silent is unpleasant, but also that failing to

speak is in itself also an abusive and disruptive act.

78

One can shout withsilence to the same effect as shouting loudly. Silencing or interrupting

speakers is a disrespect to the speaker and a breach ofaudi alteram partem,

which also prevents the speaker from drawing in the broader community into

the dispute by indicating that they also have an interest in its resolution. The

community are also then deprived of the opportunity of recognising the

humanity of the speaker. Silence in African procedure is a withdrawal from

the community, an act of disengagement. The individuals withdrawal from

narrative truth inhibits the operation of social truth and defies restorative

truth.79 African legal procedure is careful to avoid silencing speakers (telling

them to be silent) during the proceedings, or placing persons in situations

where they would shout at the proceedings with silence.

Community and Narrative Truth

As conceptual frameworks, the four notions of truth devised by the

Commission are useful, but it is often difficult to distinguish between them,

and their interaction is complex. It is apparent that these categories can help

us understand aspects of African legal procedure but they are ultimately

terms devised in a different context and, as such, have limitations. To

distinguish between narrative truth, social truth and restorative truth when

discussing African legal procedure belies the integration, interaction and

interconnectedness of these notions.


18/22

XL CILSA 2007232

80Part of the South African Truth and Reconciliation Commissions mandate was to restorethe human and civil dignity of the victims by granting them an opportunity to relate their ownaccounts of the violations of which they are the victims. Promotion of National Unity andReconciliation Act 34 of 1995, ch 4, s 20(3)(c).81Felman & Laub Testimony: crises of witnessing in literature, psychoanalysis and history

(1992) 85. Laub has written extensively on testimony both in its oral and written forms andis convinced of its profound therapeutic benefits. He writes: In my experience, repossessingones life story through giving testimony is itself a form of action, of change, which has to

actually be passed through, in order to continue and complete the process of survival afterliberation.82Du Toit n 61 above at 133.83Summerfield argues that bearing public witness to the effects of political violence onindividual lives is vital, if survivors are to make sense of their losses and the social fabric isto mend. Summerfield Raising the dead: war, repatriation and the politics of memory

(1995) 311British Medical Journal495. The Commission in its report attaches not only acathartic function to story telling, but also a reconciliatory one, namely by ensuring that thetruth about the past included the validation of the individual subjective experiences of peoplewho had previously been silenced or voiceless. Slabbert n 2 above at 104. TRCn 2 above

at 112.84Obeng n 52 above at 3744.

In my discussion of narrative truth I have commented on the importance

African legal procedure places on the emotive and on not silencing the

speaker. Emotions and silence (or the lack of silence) are vital elements of

narrative truth. But as I have already indicated, in African legal procedure,

emotion and silence are also vital elements of social truth and of restorative

truth. The speaker of narrative truth displays emotion and evokes emotion in

others. Evoking emotion creates a bond between the speaker and the others

and invites engagement. It is this bond that drives the dialogue described as

social truth; the bond also advances restorative truth. Encouraging the lack of

silence operates in a similar way, speaking without interruption allows for

narrative truth in its fullest possibility. Allowing the fullest possibility ofnarrative truth is in itself recognition of the speakers humanity80 and also

personally healing for the speaker81. In addition encouraging the speaker to

speak fully encourages social dialogue82 (social truth) but more importantly

opens up the possibilities of restorative justice. 83

Community and social truth

Are you guilty or not guilty?

InEighteenpence84 Konaduwa is at a loss when asked to plead guilty or not

guilty. It is her initial confusion, and later her indignation at being asked to

plead guilty or not guilty, that gives rise to the contempt of court charges

brought against her. Konaduwas experience is not unique, Adeyemi arguesthat the accepted norms of the presumption of innocence are in need of

readjustment. He contends that the presumption of innocence serves to


19/22


85AA Adeyemi United Nations Human Rights Instruments and Criminal Justice Norms andStandards 7 in M Cherif Bassionuni and Z Motala (ed) The protection of human rights inAfrican criminal proceedings (1995).86Mqeke & Voster comment that in traditional Southern African courts the onus of proof isoften on the accused to prove his innocence. This leads to confusion in magistrates courtswhen accused persons plead guilty then lead evidence to show their guilt. Mqeke & Vostern 12.87Obeng n 52 above at 3744.88Ibid.

distort the idea of justice in the mind of the average Africanthe

presumption of innocence, is unrealistic to the normal African mind: to

presume either guilt or innocence is pre-judging the issue in either way

before trial.85 A guilty or not guilty framework, and the presumption of

innocence are as fanciful to African procedure as a presumption of guilt.86

That is why Konaduwa asks: When a case has not been tried, how can one

say whether one is guilty or not?87

The communal nature of African proceedings emphasises the role of the

community in determining whether a transgression has been committed.

African procedure is not familiar with the Western insistence that an accusedplead to a charge, since this would unnecessarily separate the accused from

her community. Determining whether a transgression has occurred, includes

the accused, as well as the complainant, witnesses, and many from the

community who make up the court. Konaduwa therefore rightfully asks:

Even if the case has been tried, how can you expect one to pronounce

judgment against oneself?88 To use the Commissions terminology pleading

innocence or guilt obstructs social truth and puts the accused at odds with

restorative truth all this before the proceedings have properly begun.

Western law gives limited recognition to the role of society to adjust the

perceptions an accused may have about her own acts. Through the judge, prosecutor and defence attorney society may in limited circumstances,

particularly in criminal cases, indicate to the accused that he is mistaken as to

the legality of her act. For example an accused may be convinced that she has

murdered another person, but in fact she acted in self-defence or committed

culpable homicide. This input can not easily be described as social truth; it is

not typically a dialogue within society but rather a legal directive to the

accused to adjust his perspective. The input is better described as an

imposition of an empirical truth, in the form of a legal fact, upon the

perceptions of the accused as to the legal nature of his act. The narrative truth

of the accused, if any, is limited in typical fashion to empirical truth and fact


20/22

XL CILSA 2007234

89Ibid.90Hammond-Tooke n 14 above at 90. Judicial decisions were based on precedent, but legalniceties were never allowed to stand in the way of reconciliation.

finding.

Konaduwa is astonished and perplexed that the English Court operates in a

manner so different from African legal procedures. She is unable to come to

terms with the courts insistance that she pleads before the matter has been

discussed. Konaduwa offers her narrative truth to the court in the hope of

engaging in social dialogue so she can arrive at some social truth. By

focusing on her inability to plead and ignoring her concerns about the court

procedure, the court chooses not to engage in the process of social dialogue.

Instead the court responds in the same formulaic manner as it did before by

adding an additional charge of contempt and asking for her to plead guilty ornot guilty once again. The second charge specifically accuses her of speaking

against the established procedure of the British Court89 a clear elevation

of legal form over substance.90 The court simply insists on restating empirical

truth about the law and ignores her narrative truth by refusing to engage in

the process of social truth. An absence of restorative truth is inevitable.

Konaduwas reaction to the second charge is to resist pre-judging the matter.

She explains that she cannot answer the question about her guilt before the

trial has been finalised since she simply does not know if she is guilty.

Furthermore, she tells the court that even if she were able to know if she wasguilty she would not admit it since the court would then pronounce

judgment, similarly she would claim she is not guilty as the court would also

pronounce judgment. Konaduwa realises that the court is after judgment and

not narrative, social or restorative truth. She becomes aware that pleading

guilty or not guilty is simply a mechanism to be used by the courts to arrive

at a factual/empirical legal truth about her behaviour. For her restorative truth

is not possible since narrative truth and social truth are excluded by the court.

It is at this point that she refuses to endorse the courts insistence that she

accept empirical truth as the only way forward. Rather than engage, she

imposes the ultimate sanction (from an African procedural perspective) and

refuses to answer as to her guilt or non guilt. She refuses to engage and in so

doing withdraws her narrative truth.

Conclusion

The trial of Konaduwa in Obengs novel provides a useful understanding of


21/22


the contrast between traditional African legal procedure and Western legal

procedure.

Konaduwas expression of emotion in court shows her engagement with the

matter at hand and with society in general. This reflects the traditional

African recognition that legal disputes are not merely between the

individuals involved, but include the community in general. Western courts

often attempt to make empirical determinations of the actuality of emotions.

African procedure shows more acceptance of the expression of emotion as an

acknowledgment of humanness. The expression of emotion is not only an

element of narrative truth but also has a place in both social and restorativetruth.

In traditional Southern African legal proceedings witnesses are rarely

interrupted, whereas in Western courts interruptions occur in the pursuit of

empirical facts. In African procedure, obtaining empirical facts is only a part

of a process. Reconciliation (restorative truth) is more important than

empirical facts and so narrative truth is given greater emphasis in African

legal proceedings than in Western legal proceedings. Narrative truth is

regarded (along with empirical truth) as catalyst for social truth and for the

advancement of restorative truth. Therefore, an individuals withdrawal from

narrative truth inhibits the operation of social truth and defies restorativetruth. In this way emotion and silence (or the lack of silence) are vital

elements of African procedure since they support narrative truth and

ultimately impact on social truth and restorative truth. In this context

therefore pleading guilty or not guilty becomes problematic since social truth

can be determinant of guilt or otherwise.

Konaduwa realises that Western courts use a plea of guilty or not guilty as a

mechanism to arrive at a factual/empirical legal truth about her behaviour.

Social truth is arrived at in part through narrative truth which is excluded by

a plea of guilty or not guilty. For her restorative truth is not possible since

narrative truth and social truth have been excluded by the court.

It is strange that witnesses in Western courts are asked to tell the truth the

whole truth nothing but the truth and then are limited, curtailed and

interrupted when giving evidence. They are discouraged from showing their

emotion, and are silenced when they digress from what is regarded as

relevant. The truth they tell can therefore never be the whole truth in the

true sense of the phrase. What is more, it is no surprise that persons involved


22/22

XL CILSA 2007236

in Western proceedings do not feel that their humanity is affirmed, they

certainly do not feel drawn into a process that aims to resolve problems.

Accused persons feel that they have not been able to tell their whole story,

and complainants feel the same, it is hardly surprising then that reconciliation

or restorative justice in Western legal procedure is so illusive.

taylor truth narrative cilsa v40 n2 a3

Documents