Please note! This essay has been submitted by a student.
Restorative Justice is believed to be a theory of justice that aims to repair the harm caused by criminal behavior. It is usually accomplished through cooperative processes that allows all parties involved to meet up and solve their grievances amicably. Through such cooperation, communities and relationships get transformed and root causes of conflict get to be solved. According to Mika (1998), Restorative justice is the name given to a variety of different practices, including apologies, restitution, and acknowledgments of harm and injury as well as to other efforts to provide healing and reintegration of offenders into their communities, with or without additional punishment.
Punitive justice is also referred to retributive justice. It can be defined as a theory of justice that beliefs the best response to a crime is punishment proportional to the offence. According to Tyler (2007), retributive justice essentially refers to the repair of justice through unilateral imposition of punishment. This basically means that retributive justice has been related to the criminal punishment which involves the imposition of an appropriate punishment for violation of the law. From a state perspective, retributive justice is achieved through persecution before a judge who is mandated to impose an appropriate verdict in accordance to the law.
On the other hand, there are many differences and similarities between these justices. Firstly, restorative justice focuses on repairing harm. It ensures that the relationship between the offender and the victim has been restored. While Punitive justice focuses on punishing the offence where one is punished according to the crime he or she committed. This form of justice rarely leads to sustaining relationship between the victim and the offender.
Secondly, restorative justice is often characterized through dialogue and negotiation among the parties in conflict whereas punitive justice is characterized by negative relations among parties. Through dialogue or negotiation, parties are able to deal with the conflict better since they can come up with lasting solutions that with strengthen their relationship rather than having negative relations even when punishment has been inflicted to the offender.
Thirdly, restorative justice ensures that there’s an active participation within the community whereas in punitive justice, the state represents the community. This basically means that since it’s the community that is vulnerable to these social injustices, it creates a platform where people speak out on issues that affect them and try to come up with solutions. Furthermore, the states primary goal is to protect its citizens from any form of injustice. Through this, the state is obliged to punish law offenders in accordance to the law thus not giving the community a chance to solve issues by themselves. Retributive justice brings about negative peace whereas restorative justice brings about positive peace. In a nut shell, retributive justice, might bring about an end to violence but the community living around fails to be at peace since it continues to fear un occurrence of another violent act. While in restorative justice parties involved in the conflict are made to understand the importance of living together even when there is the absence of violence.
Finally, restorative justice helps in creating a positive attitude toward the offender rather than I Retributive justice where the offender is excluded and treated as a threat to the community. In restorative justice the offender is easily accommodated in the society since he or she ha undergone proper rehabilitation that enables them to become a better person in the society.
Often, the bible is considered an important reference point when it comes to matters of moral practice. As a result, it has come up with various ways of analyzing how various forms of justice has been practiced in the bible and which is the best suited in solving societal injustices. The biblical perspective of retributive justice articulates that it is a form of corrective justice of which the offender gets to pay for the offence they have committed. For example, according to the story of Noah in (Gen 8:21) God punishes the sinful humanity by sending floods which destroys everyone apart from those in the ark. This evidently shows how God uses retribution as a form justice so as to punish humanity. On the other hand, his mercy is evident since he spares those he considers righteous and also promises that he will never destroy mankind again.
In addition, another retributive concept of proportionality, and atonement are widely attested in (Gen 3) when Adam and Eve disobeyed against God by taking the forbidden fruit. We see God immediately subjecting them to punishment. Another example within the same context is within the story of Cain and Abel in (Gen 4:12) when Cain killed his brother and when he was asked where he was by God he lied. God’s retributive action is evident here since he subjects him to a curse that his descendants had to live by.
Another narrative that explains punitive justice in the bible is (Exd 21:23-25, Lev 24:19-20, Deut19:21). Within these verses we see that God commands that’s whoever commits a crime, he/she should be subjected to punishment that is proportional to the crime. He commanded this as a form of executing justice to the Israelites.
Not only does the bible advocate for punitive justice, it also champions for restorative justice. Through the scripture it is evident that God calls for forgiveness and love among communities. He further talks about healing among those who have been offended since it is through the death of his son that healing and restoration reconciles us to him.
According to the story of creation, we get to see that God creates a perfect world where man lives in harmony with everything around him. But due to disobedience man destroys his relationship with God thus he was subjected to punishment (gen 3:13-19). Since God is a righteous and a forgiving God, he strives to restore humanity through protecting people like Noah who was saved from the floods, Abraham whom he chose to be the father of many nations and as well as the Israelites whom he chose to be his own and ensured their protection while they were in the wilderness.
Similarly, in the New Testament, we get to see that most teachings of Jesus are about corrective Justice and forgiveness. An example of his teaching is the parable of the prodigal son where we see how the community should treat perpetrators. He explains of a man who his son took his inheritance and went to squander. The son later returns very apologetic, asks for forgiveness and his father took him in with open arms. Likewise, the community or the society should behave towards criminals.
In epistles, we see that the community of Corinth used to expel evildoers from the community. As a result Paul wrote a letter to the illustrating how such people should be treated (2Cor 2:6-8, 10-11). He explains that they should be accepted into the community and as believers it is our duty to treat others as a community of faith, love and kindness.
As seen above, the bible depicts both versions of justices. However, in my opinion it mostly advocates for restorative justice other than punitive justice since man is never alone rather he/ she lives within a community. On the other hand restorative justice not only settles disputes rather it restores relationships, brings about dialogue and also unifies communities. It further explains that though man is a sinful being, God sent his only son to restore us to him though his death and resurrection. The bible places restorative justice as one that brings about lasting peace among individuals rather than punitive which continues to strain relationships even after punishment of the offence has been done.
Over the years, the Kenyan judicial has under gone changes. It is has worked on improving how issues or injustices are handled. Firstly, before the ‘white man’, the Kenyan judicial system was more of traditional to mean that most conflicts were solved by community elders. At this traditional state, we see that ways of handling different offences differed from one community to another. Theories of justices also depended of the offence committed. In many occasions, community elders opted to use restorative justice rather than punitive and this was because punitive did not really embrace dialogue and the sense of communism/ oneness which was essential in any community.
However, after colonization we get to see changes such as centralization of governments and introduction of proper written laws that everyone was to follow despite their origin and failure to that, consequences were there. With the introduction of a western type of a justice system, punitive justice was also in cooperated where one would be punished with an offence proportional to the crime and as well as they will be excluded from the community through being taken to jail or juvenile. Then, this type of justice was effective since many feared being taken away from their families.
Conversely, over the years, the Kenyan parliament argued that punitive type of justice was not the best way to punish crime since for example if one is caught for killing, and he/she is put behind bars/ subjected to hanging that was not enough to make one realize the wrong they did since they could still threaten those in jail as well. So they opted to incorporate restorative justice through ensuring that they undergo rehabilitation as a way of making then better and productive people to the community.
Is the Kenyan Justice system in support of punitive or Restorative? In my own point of view, the Kenyan justice system supports both punitive than restorative since yes it aims to punish the offender with a punishment that is proportional to the crime and when they are undergoing their punishment, they are rehabilitated through equipping them with better skills such as tailoring, carpentry and also hairdressing.
Other than that, we can look at the Kenyan justice system from another angle where it supports punitive justice more than restorative justice. A clear case would be the recent case of a young lady who killed her lover. We see the courts sentencing the lady to a punishment that is proportional to the action she did which was a death sentence. In my view, the courts would have applied both theories of justice through subjecting her to tough labor while in jail and as well as taking her through counseling.
For a better and peaceful society in Kenya, restorative justice is the best since communities are able to accommodate one another with their strengths and weaknesses. In Kenya especially where punitive sometimes dominates, restorative justice would be best since it brings about healing and satisfaction where no party feels like they have been discriminated. In addition, restorative justice gives offenders an opportunity to make things right again through partaking activities that will bring growth to the community.