PRISON FELLOWSHIP ZAMBIA: CONSULTATION ON THE CRIMINAL JUSTICE SYSTEM – 26 to 28 MARCH 1992
INTRODUCTION
At the outset let me say what a great privilege and honour it is for me to be here today not. For many of us in Zimbabwe who have been battling with grave human rights abuses and the oppression that is synonymous with a party committed to de facto one party rule, what has happened in Zambia over the last few months has been the source of great encouragement. I bring greetings from the human rights community in Zimbabwe and the Christian community who salute the people of Zambia. I should stress that we salute not just the MMD for being so gracious in victory but also UNIP for allowing a peaceful transition to take place. The people of Zambia have done a great thing for Africa; a great precedent has been set and we pray and trust that what the people of Zambia have done and have allowed to happen, will act as a catalyst in the whole region.
We in the Christian community in Zimbabwe are perhaps more encouraged than anything else by the obvious faith of President Frederick Chiluba. From what he has done thus far it seems to us as if he is committed to bringing true justice, justice based on Biblical principles, to Zambia. The first sign of this was when he appointed Dr Rodger Chongwe to be Minister of Justice. I first met Dr Chongwe when we both attended a judicial colloquium in Harare in l989 and it has been a great pleasure to get to know him. I am aware that he is a man with a deep commitment to human rights and that he is open to reforming the complete justice system in Zambia and the criminal justice system in particular. With such men at the helm I am reminded of the true fast mentioned by the Prophet Isaiah in Isaiah 58: 6 – l0
“Is not this the kind of fasting I have chosen;
to loose the chains of injustice and untie
the cords of the yoke,
to set the oppressed free and break every yoke?
Is it not to share your food with the hungry and to
provide the poor wanderer with shelter:
when you see the naked to clothe them,
and not to turn away from your own flesh and blood?
Then your light will break forth like the dawn,
and your healing will quickly appear;
Then your righteousness will go before you,
and the glory of the Lord will be your rear guard
Then you will call, and the Lord will answer;
you will cry for help, and he will say:
Here I am.
If you do away with the yoke of oppression
with the pointing finger and malicious talk,
and if you spend yourselves on behalf of the hungry
and satisfy the needs of the oppressed,
then your light will rise in the darkness,
and your night will become like the noon day.”
Zambia indeed faces much darkness at present and there are many cries for help, but I am convinced that if the nation humbles itself, sets the oppressed free and, for example, reforms the criminal justice system then the light will break, healing will quickly appear and the Lord will answer your cry for help.
The important point I wish to stress however is that the Church and scripture has a major role to play in the reformation not only of the criminal justice system in Zambia but also in the entire rebuilding of Zambia. Much faith may be put in economic programmes and fashionable western concepts of criminal justice but I believe that scripture has all the fundamental answers to all the problems that Zambia, and indeed that many other countries in Africa face at present. When the Lord Jesus said that “(we) are the salt of the earth … (and) the light of the world” (Matthew 4: l3-l4) he stated quite clearly that Christians are the people who can provide salt to preserve the good things in any nation and they are the light to show a way out of the darkness that hangs over any nation. Much then as we might want to rely on the wisdom of the world, the weight of bringing about true justice and true rehabilitation in Zambia lies on the shoulders of those who are committed to the Lord.
Definition of Crime
Before we look at the origins of crime I think that we need to know and understand what crime is. And before I go any further I would like to acknowledge the work of the Founder of Prison Fellowship International, Mr Charles Colson, whose paper “Towards an Understanding of the Origins of Crime” published in a book called “Crime in the Responsible Community” has been most useful to me. In fact I have drawn greatly on his thinking and rather than give individual acknowledgements through the course of this paper I would simply like to give a blanket acknowledgement at the beginning.
Charles Colson refers to a definition of crime given by Edwin Sutherland which is:
“the essential characteristic of crime is that it is behaviour which is prohibited by the State as an injury to the State and against which the State may react, at least as a last resort, by punishment. The two abstract criteria generally regarded by legal scholars is necessary elements in a definition of crime are:
(i) legal description of an act is socially harmful, and
(ii) legal provision of a penalty for the act.”
That is a commonly held secular definition of crime but there are problems with it:
A. Firstly the State must define crime. What may be a crime in one country is a right in another. This is particularly so in Africa where one party governments define crimes which are often created with a view to maintaining their privilege and power. This is so not just in a country like South Africa where the white minority have developed laws to maintain the status quo but also in countries such as Zimbabwe where many “crimes” are rights in other countries. This is even more so in de jure one party countries such as Malawi where, for example, the freedoms to express ones views and associate with parties of one’s choice are crimes, punishable by the State.
B. Secondly, in any society there are often conflicts between what overall society perceives to be the greatest good for the greatest number and the rights of individuals. A good and relevant example of this is given in the debate which is raging at present in Zimbabwe regarding the Land Acquisition Act. Many people dispossessed of land believe that it is a crime that so much of the land in Zimbabwe is still in the hands of the minority; that minority thinks that it is a crime that they should not be compensated fairly for their hard work when the land is compulsorily acquired from them.
C. Thirdly, crimes by the State are usually not defined. Likewise crimes by political parties and politicians are often not defined. This is particularly so in Africa where the crimes of oppression, corruption and wholesale theft by government parties and politicians are not to be found on the statute books and even if they are, they are not prosecuted.
D. Fourthly, and finally, there is a conflict in that the definition of crime is often biased against the poor and in favour of the rich. It is a crime to steal bread to feed one’s family, but it is not a crime for a President to so grossly mismanage an economy that thousands of people die from starvation.
The danger is that the church and Christians slip into the thinking that crime is simply defined in terms of the Ten Commandments. Certainly all the principal common law crimes including murder, rape, kidnap, theft, robbery, extortion, fraud, arson, bigamy and perjury (to name but a few) stem from the Ten Commandments found in Deuteronomy 5. My concern however is that the Ten Commandments tend to dominate our thinking when it comes to us defining crime.
The Lord God has a much wider definition of crime. In Isaiah l: 2l – 26 we read:
“See how the faithful city has become a harlot!
She once was full of justice;
righteousness used to dwell in her:
but now murderers!
Your silver has become dross,
your choice wine is diluted with water.
Your rulers are rebels, companions of thieves;
they all love bribes and chase after gifts.
They do not defend the cause of the fatherless;
the widow’s case does not come before them.
Therefore the Lord, the Lord Almighty,
the mighty one of Israel, declares:
Ah, I will get relief from my foes
and avenge myself on my enemies.
I will turn my hand against you;
I will thoroughly purge away your dross
and remove your impurities.
I will restore your Judges as in days of old,
your Counsellors as at the beginning.
Afterwards you will be called the City of Righteousness,
The Faithful City”
Likewise in Amos 2: 6 – 7 we read:
“This is what the Lord says:
For three sins of Israel, even for four,
I will not turn back my wrath.
They sell the righteous for silver
and the needy for a pair of sandals.
They trample on the heads of the poor
as upon the dust of the ground and deny justice
to the oppressed”
And as you are aware the Bible is full of similar statements speaking out against crimes committed against individuals by rulers, kings and governments.
The words I have read to you from Isaiah 2, are particularly relevant to Zimbabwe and to many countries throughout the world. For example in Zimbabwe we have seen a great suppression of people speaking out against injustice and mass murder of people in Matabeleland by the Five Brigade in l983; many of our rulers are “companions of thieves”; many of our rulers love bribes and chase after gifts; many of our leaders do not defend the cause of the fatherless and are only motivated by what will keep them in power without thought for the plight of the poor.
What I am conveying is that we must not have a narrow view of crime. The church and Christians must not blandly accept that the State’s definition of crime is the be all and end all. Crime as defined by the State must always be measured against scripture. There are certain crimes which are defined by the state in such a way that they are contrary to God’s word. The church and Christians should say boldly that they do not view those particular acts as crimes. A good example of this was given in South Africa a few years ago when the Immorality Act prohibited marriage between people of different races. If people of different races married that was a crime punishable by the State. The church spoke out against that and refused to comply with that law.
Likewise the church has a role in defining what should be legislated as crime. I think particularly in the central African context where states, governments, political parties and politicians regularly commit acts which are not state defined “crimes” but which are acts which clearly contravene the dictates of scripture and which should be declared by the State to be crimes. For example where government policies are such that individual politicians accumulate great wealth at the expense of the common people these acts should be viewed as criminal by the church. In fact the church has a duty to speak out publicly against such acts.
In essence what I am saying is that as we look at the reformation of the criminal justice system in Zambia we must not just look conservatively at the existing common law crimes, criminal procedure and prison policy. All these things are obviously important but we need to have a wider view of things. We need to press not just for alternatives to imprisonment, not just for alternative sentencing and not just for ways of getting people through the court system more efficiently and more quickly. We need to have a broad view of the entire society and to recognise that, for example, gross human rights violations by the State should be crimes and that such crimes should be met with penalties and that these penalties should be paid by the people in Government responsible for perpetrating such human rights violations. In doing so we will recognise that our definition of crime should not simply be the behaviour which is presently prohibited by the state as an injury to the state and against which the state may react. Crime is in essence whatever acts are done by men against each other which conflict with those portions of the Ten Commandments and scripture generally which relate to human beings’ relationships with one another. I deliberately exclude the commands contained in scripture regarding our relationship with God. Our definition of crime must be restricted to relationships between people because it is in those relationships that God has given us the power to punish and reform one another. Any disobedience of God’s commands as they relate to our relationship with Him are to be dealt with by Him and it is not the place of Christians to impose these commands upon entire nations.
Theories regarding the origins of crime
In view of the very broad definition of crime I have attempted to give above we need to consider the origins of crime. Why do individuals commit crime whether those crimes are those as currently defined by the State or crimes as per my wider definition, namely those acts which are contrary to God’s laid down decrees dictating how we should relate to one another? The origins of crime have concerned psychiatrists, academics and others for hundreds of years and many studies have been done. I do not propose to look at all the various theories regarding the origins of crime and will confine myself to the following:
l. Psychological.
2. Economic.
3. Constitutional or physical defects and
4. Sociological.
l. Psychological Theories
In early 20th century Charles Goring, an Englishman, and Henry H. Goddard, an American, developed theories that “feeblemindedness” (that is, limited educational or intellectual capacities) was the single most important correlate of crime. These theories were shattered after World War I when several studies showed that the percentage of “feeblemindedness” was no higher among prison populations than among the public at large and one study even revealed that 86% of inmates had average or better than average IQs (Intelligence Quotients).
Notwithstanding the above, mental imbalances and psychiatric disorders often lead to types of deviant conduct which society punishes. Alcoholism too, for example, often leads to conduct which society punishes. But it is hard to say that such imbalances or disorders are the origins of crime.
2. Economic Theories
The Dutch criminologist, W A Bonger who held a Marxist world view, was one of the first to expand on the theory of economic circumstances as a cause of crime. His theories have gained great currency amongst Marxist criminologists who have argued that crime is the direct result of the inequalities and inequities of social and economic order. Later studies have taken the theory a step further and it is argued that criminal law is an instrument of oppression; that criminal law is designed by the ruling classes, the petty bourgeois, to maintain the existing social order and status quo. The theory goes that if the perfect environment was created with a classless society then there would be no crime.
These theories are obviously in direct conflict with the Christian view point which holds that man is inherently sinful and even if one creates the perfect environment, a utopia, man will still sin and will still commit crime. Having said that however, there is no doubt that the economic conditions that people find themselves in are a factor in crime. The prison population in Zimbabwe (and Zambia no doubt) is predominantly poor. Some 95% of people passing through our criminal justice system are unrepresented in Zimbabwe and studies have shown that the unrepresented accused person has a much smaller chance of obtaining a fine or of being acquitted than the represented accused person.
The statistics found in annexure “A” to this paper (gleaned from Volume I No. 3 of Legal Forum published by the Legal Resources Foundation in March l989) reveal that an overwhelming majority of common law crimes in Zimbabwe in the period January to September l988 involved theft. Whilst one cannot tell from bare statistics the circumstances in which these thefts were perpetrated I know from my own experience as a trial lawyer that many thefts are committed by unemployed people who are victims of economic stagnation and collapse in Zimbabwe.
However it is important to remember, when considering these statistics, that there are literally millions of people in Zimbabwe who live below the poverty datum line and only a small proportion of those people become criminals. Poverty alone then is not sufficient to explain criminality.
3. Constitutional or physical defect theories
In l876 an Italian surgeon, Cesare Lombrosa wrote a book entitled “Criminal Man” in which he theorised that criminals are identifiable by the manifestation of measurable physical characteristics. In other words, if a man looks like a criminal, he must be one. Whilst on the face of it this may seem a comfortable theory – all of us I am sure have from time to time judged people just by the way they look – the theory has been discredited. The obvious rebuttal to the theory is given in the case of the average “con-artist” who is able to swindle people of their money simply because they are so plausible.
4. Sociological Theories
This theory is vaguely similar to the economic theories propounded earlier on. Many sociologists have argued that the primary cause of crime is to be found in an individual’s social and environmental influences. The theory goes that a person’s values are determined by his or her family or local community. For example if one grows up as a member of a Mafia family, state defined crimes are legitimate, so long as the members of one’s family or the residents of the immediate community are not the victims.
Another interesting sociological theory of the cause of crime has been put forward by Robert K Merton. His theory has particular relevance in today’s materialistic world. Merton believes that high crime rates are a direct reflection of the values which society places upon individual success, hard work, ambition, and the concept of getting ahead at all costs. This is particularly relevant in a country such as Zimbabwe where there is such great disparity of wealth and so many temptations. The dream of owning a Mercedes Benz, living in a large house, owning a farm and having a luxurious lifestyle is unattainable for most people: legitimate means for attaining these luxuries are not, and indeed cannot be, equally distributed throughout society. Most people in Zimbabwe are condemned to a life of poverty in high density suburbs or communal areas and some resort to illegitimate means to secure these goals.
The more affluent portions of society are, the harder it is for people to come to grips with the reality of their poverty. In Zimbabwe this is compounded by the fact that many of our leaders seem to have acquired instant wealth, many of them are terribly corrupt and, what is perhaps more important, have got away with their corrupt actions. Corrupt activities amongst common Zimbabweans thus becomes extremely attractive. Not only are they means to acquire wealth but they seem to be fairly safe means that will not attract the attention of the police and the criminal justice system generally. In fact Zimbabwe is so riddled with corruption at present, especially amongst the hierarchy of the political leadership, that the entire criminal justice system is threatened by it. For example many people who were formally honest and who in the past regularly paid every last cent of tax due to the state are now seeking ways to evade tax which of course is not just a crime in terms of Zimbabwean law but is also a crime in terms of God’s law: the Lord Jesus told us to render unto Ceasar what belongs to Ceasar.
Furthermore, because of the economic decay in Zimbabwe, crime is often an occupational choice. Many Zimbabweans have resorted to stealing motor vehicles and to smuggling goods simply to survive. In this sense people then are victims of family disintegration, poverty, social conditions, economic decay, government corruption and mismanagement.
The trouble with this theory, however is that not all people commit these crimes. Furthermore the theory removes culpability from offenders. For these reasons the sociological theory cannot alone describe the origin of crime.
Judeo Christian View
I do not propose to steal Joe Kapolyo’s thunder by discussing in detail the Judeo Christian view. Joe I see will be talking tomorrow on the Biblical perspective on crime and punishment. Let me just say however that I believe that the basic origin of crime lies in man himself. Man was created perfect, in the image of God, but he was given a free will, and one of his first free acts was to disobey God.
Romans III : l0 – l2 states:
“There is no-one righteous, not even one;
there is no-one who understands,
no-one who seeks God.
All have turned away,
they have together become worthless;
there is no-one who does good,
not even one.”
In essence man falls short of the glory of God (Romans 3 : 23), and is his heart is depraved (Mark 7 : 20 – 23). Because of this he continues to live in revolt and rebellion against God and therefore at enmity with God’s creations – his own neighbours, his environment and even himself.
In my view crime is simply a manifestation of man’s nature both in individuals committing crime and individuals creating environments in all nations in which people are pushed into criminal activity. What do I mean by this?
l. Sinfulness of man as an individual
Because we have all turned away from God the environment we find ourselves in or the conditions in which we find ourselves placed are not the actual cause of crime. Ultimately each person sins simply because he chooses to sin. To be put it another way – people who commit crimes do so because they chose to commit crimes.
2. Sinful society
Individuals with a choice to commit crime have things made even difficult because they live in societies filled with sinful people who create difficult environments and circumstances. In essence what I am saying is that crime is not just the result of sinful individuals choosing to commit crime; it is also the result of sinful society being so riddled with greed and selfishness that inequitable conditions result causing poverty, desperation, anger and often criminal activity. It is man’s collective sin which results in oppressive governments, economic and environmental degradation all of which usually combine to bring about grinding poverty and desperation for common people in any nation. This has the effect of exacerbating the incidence of criminal activity.
CONCLUSION
Having considered the definition of crime and the origins of crime. How do we apply all of this to the reformation of the criminal justice system in Zambia or in any other country for that matter? I would like to leave you with four points to consider which I hope will be relevant to the rest of our deliberations.
l. We must recognise that, fundamentally, crime is simply a manifestation of sin. Whilst, no doubt, other factors such as physiological imbalances, economic decay, social and environmental influences all aggravate crime and play a role in breeding crime, we must recognise that every sane person has a choice between doing what is right and doing what is wrong in God’s eyes. As we tackle the criminal justice system it is important that we recognise this and that we do not blame society, or our environment for everything. Repentance is an essential concept to remember if our aim is to produce a criminal justice system that truly brings about justice to criminals and victims alike. True rehabilitation of criminals can only take place within a system which causes them to repent individually for what they have done. As long as the individual criminal is allowed to blame something else for what he has done, society will not have been improved by the criminal justice system. Accordingly the entire criminal justice system should be designed in such a way that the individual is confronted with the wrongfulness of his own actions.
This is not achieved in a system which, for example, favours the rich through unequal defence representation in court, produces lengthy remand delays or which channel people into communities which reinforces the individual’s view that what he or she has done, is justifiable. If any of these factors are present in a criminal justice system the individual will be able to divert his focus of attention away from himself to the inequalities of the system or to the fact that everyone else is doing what he is doing, so it must be alright. The tragedy of the unrepresented accused who is sent to prison is that often it simply confirms in his mind that there is no justice and that his theft, for example, was justifiable. The tragedy of our present prison system, and our pre-occupation with imprisoning criminals, is that it breeds whole communities of criminals who justify their conduct to each other. In doing so criminals do not repent before God and thus are not truly rehabilitated.
2. We as a church and Christians need to consider the wider effect of man’s sin in society. Through sin in government, which manifests itself in abusive power, corruption, self aggrandizement, mismanagement and human rights abuses, criminal activity, in the broader scriptural sense of the word, is fostered. We need to recognise that no matter how good the criminal justice system is, if Government’s elective sin is not tackled, the danger is that the entire criminal justice system can be undone.
We need to recognise that the answer does not lie in good constitutions or good ideologies. The answer ultimately lies in Governments being made accountable to uphold God’s standards of justice in the broadest possible sense. We as Christians need to take seriously the Lord Jesus’ commands that we have to be the salt and light in any community. We as Christians must not just be involved in trying to reform the penal system. Our salt and light must be directed towards Government itself. The church must be bold in standing up for God’s standards of justice and for speaking out against Government wherever Government action runs contrary to those standards.
3. Finally I am of the view that it is a healthy thing for any criminal justice system to be completely reviewed periodically in the light of scripture. In Zambia at present you have an opportunity that will not present itself again for many years. Now you have the chance to review your entire criminal justice system in the light of scripture. I am not for a moment suggesting that this should become a fundamentalist Christian state – far from it. As indicated above I believe that our criminal justice system should merely reflect God’s commandments pertaining to our relationships between man and man, not man and God. With this in mind I believe that Government and the churches should together consider the following:
(a) are Zambian statutory crimes consistent with scripture?;
(b) are their actions of Government, politicians and people in high positions which offend against God’s fundamental laws which should become statutory crimes?
(c) do punishments handed down by the criminal justice system meet the needs to:
(i) help criminals come to terms with their need for repentance;
(ii) help criminals to recognise that in Christ they are forgiven and can lead new lives and be truly rehabilitated back into society;
(iii) assist the victims of crime so that they feel that justice has been done;
(iv) prevent the spread of crime.
These are all matters which will be debated at great length not just over the next two days but no doubt in the weeks, months and years that lie ahead. Because we are all fallible and sinful there will be no perfect answer but in conclusion I would simply remind you of Paul’s words in Philippians 3 : l2 – l6:
“Not that I have already attained all this, or have already been made perfect, but I press on to take hold of that for which Christ Jesus took hold of me. Brothers, I do not consider myself yet to have taken hold of it. But one thing I do: forgetting what is behind and straining towards what is ahead, I press on towards the goal to win the prize for which God has called me heavenward in Christ Jesus. All of us who are mature should take such a view of things. And if on some point you think differently, that too God will make clear to you. Only let us live up to what we have already attained.”
With these words in mind I believe that together we can bring about more of God’s justice not just in Zambia but in the entire subregion.