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Abstract

This article introduces a pilot project that seeks to apply restorative justice principles to wildlife crime offences in South Africa. A local conservation NGO, the Endangered Wildlife Trust, under the World Wide Fund for Nature (WWF) South Africa Khetha Programme and supported by the United States Agency for International Development (USAID), is piloting this innovative project in a harm landscape (wildlife crime offences) that is renowned for retributive and punitive approaches to justice. The project was launched in August 2019 and although the project team was still in the inception phase at the time of writing, team members have made great headway in developing a conceptual framework and implementation plan. This note explains why we think the time is ripe for environmental restorative justice in South Africa and how we plan to implement the pilot project; we also share lessons learnt for future initiatives and projects.
Focus on victims and the community: applying restorative justice principles to wildlife crime oences in South Africa
e International Journal of Restorative Justice 2021 vol. 4(1) pp. 141-150
doi: 10.5553/TIJRJ.000068 139
NOTES FROM THE FIELD
Focus on victims and the community: applying
restorative justice principles to wildlife crime
oences in South Africa
AnnetteHübschle, AshleighDore and HarrietDavies-Mostert*
1 Introduction
is note introduces a pilot project that seeks to apply restorative justice principles
to wildlife crime oences in South Africa. A local conservation NGO, the Endangered
Wildlife Trust, under the World Wide Fund for Nature (WWF) South Africa Khetha
Programme and supported by the United States Agency for International
Development (USAID), is piloting this innovative project in a harm landscape
(wildlife crime oences) that is renowned for retributive and punitive approaches
to justice. e project was launched in August 2019 and although the project team
was still in the inception phase at the time of writing, team members have made
great headway in developing a conceptual framework and implementation plan.
is note explains why we think the time is ripe for environmental restorative
justice in South Africa and how we plan to implement the pilot project; we also
share lessons learnt for future initiatives and projects.
2 Restorative justice in South Africa
South Africa is internationally renowned for the application of restorative justice
principles during and after its democratic transition, which ended decades of
injustice and human rights violations of the apartheid regime (Skelton, 2013). e
* Annette Hübschle is a senior research fellow in the Global Risk Governance Programme in the Law
Faculty at the University of Cape Town, South Africa. Ashleigh Dore is the wildlife and law manager
at the Endangered Wildlife Trust and heads the Restorative Justice Project, South Africa. Harriet
Davies-Mostert is the head of conservation at the Endangered Wildlife Trust, the senior manager
of the Restorative Justice Project, South Africa and a Fellow of the Eugène Marais Chair of Wildlife
Management at the Mammal Research Institute, University of Pretoria.
All authors are members of the Restorative Justice Steering Committee of the Wildlife Crime
Restorative Justice Project undertaken by the Endangered Wildlife Trust under the WWF South
Africa Khetha Programme and supported by USAID.Contact author: Ashleigh Dore at ashleighd@
ewt.org.za.
Acknowledgment: the authors would like to thank Mike Batley and Lara Rall for their helpful
comments and feedback on earlier versions of this note.
Acknowledgment 2: e funding for this research was provided in part by the European Research
Council (ERC) under the European Union’s Horizon 2020 research and innovation programme
(grant agreement n° 804851).
e International Journal of Restorative Justice 2021 vol. 4(1) pp. 141-150
doi: 10.5553/TIJRJ.000068
140
AnnetteHübschle, AshleighDore and HarrietDavies-Mostert
famed Truth and Reconciliation Commission (TRC) under the leadership of
Archbishop Desmond Tutu oered South Africans a platform where the painful
past was acknowledged and a new future was forged based on apology and
forgiveness (Tutu, 1999). While there are divergent views on the successes and
failures of the TRC (Malotane Henkeman & Whande, 2019; van der Merwe &
Chapman, 2008), the TRC provided a point of reference for engaging with dicult
questions about the nature of justice in post-conict societies. Recognised as a
theory of justice and rmly anchored in South Africa’s Constitution, restorative
justice continues to inuence policy and legislation and animate public and ocial
discourse (Batley & Skelton, 2019). e Constitutional Court, in particular, has
embraced restorative justice jurisprudence. e Court’s unique application of
modern restorative justice concepts combined with the African philosophy of
ubuntu has not only occurred in criminal justice contexts but also across a range of
legal contexts (Skelton, 2013). However, restorative justice principles have not
found any application in the environmental, conservation and wildlife crime
spheres in South Africa where retributive justice and command-and-control
approaches dominate.
3 Wildlife tracking and criminal justice responses in South Africa
South Africa is the third most biodiverse country in the world. It is recognised for
high levels of endemism and is home to over 88,000 known species (Skowno et al.,
2019). However, the country’s rich biodiversity hangs in the balance due to a
number of interconnected threats ranging from climate change, pollution and
overexploitation to land-use change and habitat loss (IPBES, 2019). Since the turn
of the millennium, overexploitation of wildlife species through illegal hunting and
harvesting has become a serious concern to conservationists, law enforcers,
regulators and aected communities (South African Police Service, 2016). For
example, more than 8,200 rhinoceros were illegally hunted between 2010 and the
time of writing this note in November 2020 (Department of Environment, Forestry
and Fisheries, 2020). Illegal shing has led to the overexploitation and reduction of
critical stock levels of many marine species, including the coveted sea mollusc
abalone (Isaacs & Witbooi, 2019). In light of South Africa facing the risk of losing
more than 50 per cent of its cycad species by the mid-2020s, the South African
National Biodiversity Institute (SANBI) has declared a ‘South African cycad
extinction crisis’ (Williamson et al., 2016: 772). Given that the world has entered
the sixth mass extinction (Kolbert, 2014), many other species of fauna and ora
face an uncertain future in South Africa and beyond (United Nations Oce on
Drugs and Crime, 2020).
Environmental authorities have relied almost exclusively on criminal measures
to compel compliance with wildlife and marine laws and regulations in South Africa
(Herbig, 2008). Success is measured through the annual crime statistics released
by the South African Police Service. Arrest and successful prosecutions are used as
key performance indicators (KPIs) and assessment tools to indicate heightened
conservation agency guardianship. To meet KPIs, environmental ocers focused
Focus on victims and the community: applying restorative justice principles to wildlife crime oences in South Africa
e International Journal of Restorative Justice 2021 vol. 4(1) pp. 141-150
doi: 10.5553/TIJRJ.000068 141
their activities on low-hanging fruit: local people who attempt to access natural
resources that used to be common pool resources but are now protected behind
fences (Herbig, 2008). However, the steep increase in illegal rhinoceros hunting
incidents in South Africa since 2008 has put immense pressure on the state to nd
eective responses that deter illegal wildlife hunting. ere have been public calls
for harsher punishment for wildlife oenders, even shoot-to-kill policies
(Lunstrum, 2017).
At the ground level, conservation actors started implementing quasi-military
and security measures which included but were not limited to the employment of
military and security actors, strategies and technologies (Büscher & Ramutsindela,
2016). While some argue that green militarisation was required to deter armed and
dangerous organised criminals from killing endangered wildlife (Hübschle &
Jooste, 2017; Shaw & Rademeyer, 2016), others have pointed to the negative
impacts on community-park relations and the active return to fortress conservation
(Hübschle, 2017b; Ramutsindela, 2016). More than 1,700 suspected rhino
poachers and trackers were arrested between 2010 and 2016 (Rademeyer, 2016)
and several hundred poaching suspects have been shot dead on protected land over
the past decade in South Africa (Hübschle & Shearing, 2021). Yet, wildlife crime
continues to be viewed as a low-risk and high-reward activity as many wildlife
crime cases never make it to court or are struck o the roll due to insucient
evidence (Rademeyer, 2016). As traditional criminal justice responses have not
been able to stem the tide against wildlife tracking, the time is ripe for innovative
new approaches.
4 Project design of the restorative justice project
e rationale for a pilot project that would apply restorative justice principles to
wildlife crime oences was prompted by the realisation that the current approach
to justice in the conservation space is punitive in nature, too narrow in its approach
and too limited in its application. What is required is a new approach that works in
tandem with the criminal justice system, addressing its inherent weaknesses and
failings. e aim is not to replace the existing system but to strengthen it (Skelton
& Batley, 2008). It is against this background that the Endangered Wildlife Trust
(EWT) conceived this pilot project in the hope that restorative justice principles
oer a more just and equitable approach.
e EWT is an environmental NGO in South Africa with specialist conser vation
programming that supports the conservation of species and ecosystems, and
recognises the importance of local communities in conservation. Ashleigh Dore,
the manager of the restorative justice project, is an environmental lawyer by
training. e EWT partnered with Mike Batley of the former Restorative Justice
Centre during the development and proposal stage of the restorative justice project
in 2015. As a qualied social worker and restorative justice expert, Mike has played
a pioneering role in introducing restorative justice principles into the South African
criminal justice system and public discourse over the past two decades. Before the
project received funding from USAID as part of the WWF Khetha Programme to
e International Journal of Restorative Justice 2021 vol. 4(1) pp. 141-150
doi: 10.5553/TIJRJ.000068
142
AnnetteHübschle, AshleighDore and HarrietDavies-Mostert
tackle wildlife tracking in Mozambique and South Africa, the EWT obtained
crucial support from the South African government. Ashleigh Dore presented the
project objectives at the Rhino Conservation Laboratory,1 a solutions-oriented
workshop hosted by the Department of Environmental Aairs in 2016. e pilot
project was included in the community empowerment work stream of Rhino Lab
Action Plan. Although the pilot project ocially commenced in August 2019, the
project team conducted a scoping study in 2017 and 2018. e resultant initiation
report provided a comprehensive literature review on restorative justice models
and practices in South Africa and elsewhere in the world (Dore & Endangered
Wildlife Trust, 2018).
e project team also explored the ndings of empirical research conducted in
South African correctional centres and local communities that analysed why
individuals and communities participate in illegal wildlife economies and how the
structural context of dispossession and marginalisation may facilitate poaching
decisions (Hübschle, 2016, 2017a; Hübschle & Shearing, 2018; Moneron,
Armstrong & Newton, 2020). Beyond poaching for the ‘cooking pot and pocket
book’ (Kahler & Gore, 2012), individuals were driven by feelings of stress,
disempowerment, anger, peer pressure and emasculation. While younger poachers
(late teens to late twenties) espoused anomic and individualistic desires, older
oenders wanted to take care of their families and the community (Hübschle,
2017a). Some convicted wildlife oenders were set on achieving social upward
mobility and saw illegal hunting as a means to an end to political leadership, while
some wanted to provide social welfare to community members. Structural violence,
the generational pain of dispossession and marginalisation played a facilitating
milieu (Hübschle & Shearing, 2018) while unhappiness with rule-makers and the
perceived illegitimacy of the rules – echoing Hübschle’s concept of contested
illegality (Hübschle, 2016, 2017b) – highlighted the distrust of past and present
state authority. Moneron and colleagues (2020) categorised inuencing factors
that may lead to the commission of wildlife oences neatly into individual,
community and societal factors. In addition to the abovementioned factors, the
study identied a skewed perception of risk and the provision of employment to
others as key individual drivers, while opportunism and peer pressure were added
to the list of community drivers. ese studies provide valuable information that
must be considered if recidivism is to be constructively addressed. ey also
highlight that a purely punitive approach to justice is misplaced as it fails to tackle
underlying structural and systemic factors.
Following the scoping research and inception report, the project team
assembled a steering committee that would assist and guide the team towards
project implementation. e committee also advised on the conceptual framework
and will provide feedback on the two major outputs of the pilot project: technical
guidelines for the application of restorative justice processes to wildlife crime, and
awareness-raising material. e brief for the steering committee was the inclusion
1 Hosted by the Department of Environmental Aairs in August 2016, the Rhino Conservation
Laboratory included government, private sector, NGO and community stakeholders who developed
action plans to address the rhino poaching crisis.
Focus on victims and the community: applying restorative justice principles to wildlife crime oences in South Africa
e International Journal of Restorative Justice 2021 vol. 4(1) pp. 141-150
doi: 10.5553/TIJRJ.000068 143
of ‘critical friends’ which include government, NGO and academic experts. Cliord
Shearing who was involved in the Community Peace Process through the
Zwelethemba model (compare with Shearing & Froestad, 2010) has been an
invaluable mentor, sharing lessons learnt and advising on the conceptual
framework.
5 Development of the conceptual framework
Before moving into the second phase of developing a conceptual framework, the
project team rst assessed the key outcomes sought by implementing restorative
justice approaches to wildlife crime oences. ese include creating an appropriate
mechanism to voice and address harm and establish appropriate responses to
address recidivism. With these outcomes identied, determination of the most
appropriate conceptual framing for the project could be undertaken. e starting
point of this determination for the pilot project was founded on the three
conceptions for restorative justice identied by Johnstone and Van Ness (2013),
namely: encounter, reparative and transformative conceptions.2 Integrating and
applying these conceptions allowed the project team to identify three conceptual
frameworks, as discussed below.
e rst framework developed was based on the transformative conception of
restorative justice, seeking to use restorative justice to respond to structural
injustice. Structural injustice is dened as when ‘disparities, disabilities and deaths
result when systems, institutions, policies or cultural beliefs meet some people’s
needs and human rights at the expense of others’ (Batley & Skelton, 2019: 8). If
restorative justice were to be applied under this framework it would be aligned to
the approaches taken in conict transformation and would seek to create
constructive change processes that reduce violence and increase justice in direct
interaction and social structures (Batley & Skelton, 2019). Due to its focus on
structural injustice, this framework would require the pilot project to take a broad
approach, recognising the harm (historical and current) suered across the project
landscape at a macro level, as opposed to individual harms and how these are
addressed. Consequently, the application of this framework could be less eective
in addressing the individual harm, which is a critical element the pilot project aims
to achieve.
e second framework is more aligned with encounter and reparative
conceptions of restorative justice, focusing on the application of restorative justice
to specic oences. Under this framework, the application of restorative justice
processes aims to make the criminal justice system more eective and responsive.
Critically, this framework could address the following three perceptions and
2 e 2019 review by Batley and Skelton provides a succinct overview of the three conceptions put
forward by Johnston and Van Ness. e encounter conception brings together people with a stake
in a crime or misconduct to discuss what happened, how it aected them and what needs to be done
about it. e reparative conception recognises that crime causes harm, and a just response is needed
to repair the harm. e transformative conception among other things acknowledges that systemic
injustices must be addressed.
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AnnetteHübschle, AshleighDore and HarrietDavies-Mostert
factors. Firstly, there is the misconception that environmental oences (and
wildlife crime oences, specically) are victimless. As the South African approach
to justice in wildlife crime cases is punitive in nature, it focuses primarily on the
oender with little to no focus given to the harm caused by the oence. Our
approach to justice robs victims of their voice and in so doing perpetuates the myth
that environmental oences are victimless. Environmental crimes are not
victimless oences: individuals and communities suer immense trauma as a
result of wildlife oences, and are often alienated, even persecuted or killed for
their role in protecting wildlife or calling out fellow community members for their
criminal roles.3 South Africa loses a piece of its natural heritage every time a wildlife
oence takes place, and the biodiversity impacts are severe. One of the cornerstones
of restorative justice is an acknowledgement of harm, thus addressing this
damaging perception. Secondly, the aforementioned studies by Hübschle (2016,
2017a), Hübschle and Shearing (2018) and Moneron et al. (2020) have highlighted
the impact of normalisation or contested illegality in responding to wildlife
oences, specically in addressing recidivism. Hübschle’s research (2017a) has
shown how various groups do not accept the law regarding the illegal hunting of
rhinoceros for various reasons, including but not limited to perceived unfairness of
the law or regulations, divergent social or cultural norms, for politico-historical
reasons or for lack of economic benet. One of the cornerstones of restorative
justice is an acknowledgement of wrongdoing, thereby going to the heart of
contested illegally. irdly, referrals to restorative justice programmes aim to
reduce recidivism on the part of the oender.
e project team and steering committee found that the second framework
spoke to the harm caused by wildlife crime oences and constructively addressed
recidivism. Consideration was then given to combining the rst two frameworks
and thereby creating a third framework. Stauer (2015) and Henkeman (2012)
hold that by concentrating on justice in interpersonal interactions, there has been
a tendency to overlook structural injustice and the need for systemic change.
Stauer proposes to balance restorative justice as ‘interpersonal, social service
practice’ and a ‘framing paradigm for systemic change’ by understanding restorative
justice as a social movement (Batley & Skelton, 2019: 9). Stauer identies three
tasks necessary to achieve this. First, form individual and institutional alliances to
support the strategic, organisational and logistical requirements of durable change.
Secondly, develop and sustain strong localised practice. Lastly, ensure collaboration
between individuals and organisations to drive transformation of the system as a
whole (Batley & Skelton, 2019).
After due consideration of the frameworks, as well as the current challenges in
achieving justice for wildlife crimes and the identied outcomes the pilot project
sought to achieve, the second framework was selected as the primary conceptual
framework, with the goal of exploring and moving into the third framework as the
project develops and relationships, specically with people and communities in the
project area, are built.
3 e in Green Line Foundation (2020) reported that suspected poachers had killed 189 rangers
in Africa between 2009 and 2016.
Focus on victims and the community: applying restorative justice principles to wildlife crime oences in South Africa
e International Journal of Restorative Justice 2021 vol. 4(1) pp. 141-150
doi: 10.5553/TIJRJ.000068 145
6 Project implementation
Once the conceptual framework had been developed, the next activity involved
conrmation of the implementation process for the pilot project, which is designed
to take place in two broad phases: foundational and operational. Under the
foundational phase of the pilot project, technical guidelines with minimum
standards informed by comprehensive stakeholder engagement will be developed.
is includes focus groups with at least seven stakeholder groups: prosecutors and
law enforcers; community representatives; NGO representatives, practitioners and
academics; private and public wildlife and reserve owners and private security
representatives; various relevant government departments; commercial operations
including tourism and hunting operators and the judiciary. An ethical review and
clearance process is underway to ensure that the project team adheres to strict
ethical standards in their interactions with the stakeholders and others.
All preliminary research by the project team indicates that there is no recorded
instance of restorative justice being applied to wildlife cases in South Africa.
erefore, detailed guidelines on the implementation for restorative justice are
required to ensure inter alia that due process is followed, the processes are not
abused, human rights are upheld and justice is served. Once the guidelines have
been drafted, they will undergo an external review process. ereafter, an extensive
awareness-raising initiative will be undertaken to ensure that all stakeholders
understand the concept correctly. e team will also address preconceived notions
of restorative justice including that it is a soft approach to justice and that it will be
used to allow oenders to evade their just desserts.
Under the operational phase of the pilot project, due to take place from June
2021 to June 2022, the team will actively seek appropriate test cases to apply
restorative justice approaches to wildlife crimes. In preparation for this phase, we
have developed case study examples in recognition that South Africa experiences
both syndicated and non-syndicated wildlife oences. us, restorative justice
approaches need to be appropriately applied to the wide variety and increased
severity of wildlife oences. Over the operational phase, we seek to test these case
study examples and thereby create a substantial body of precedents, guiding the
use of restorative justice in future wildlife crime oences (and other environmental
oences) in South Africa.
7 Conclusion and the way forward
is note sought to share details of the nascent stages of an innovative pilot project
to apply restorative justice principles to wildlife crime oences in South Africa. e
idea is to share lessons learnt throughout project implementation and to integrate
feedback and critiques. e conceptual framework, technical guidelines and
awareness-raising materials will be living documents and thus can be amended to
t specic contexts. We hope that the approach will nd wide application in South
Africa and beyond in future projects and initiatives. Once the pilot project is
complete, we plan to share our insights and experiences in a future article.
e International Journal of Restorative Justice 2021 vol. 4(1) pp. 141-150
doi: 10.5553/TIJRJ.000068
146
AnnetteHübschle, AshleighDore and HarrietDavies-Mostert
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... While this approach seems ideal in theory, the implications of applying restorative justice to illegal fishing remain largely unexplored. However, a pilot project examining the potential of restorative justice in South Africa described by Hübschle et al. (2021) may provide critical insight into how restorative justice may reduce recidivism in illegal fishing, which has been particularly detrimental to the abalone fisheries in South Africa (Isaacs and Witbooi, 2019). Regardless, efforts focused on community involvement appear to be occurring more frequently with terrestrial wildlife and offer advantages such as heightened transparency and added pressure from community members to follow restrictions and guidelines which likely are applicable to illegal fishing. ...
... Research needs to explore areas that are particularly vulnerable to illegal fishing and document the approach undertaken to reduce recidivism and the resulting impact of this approach on illegal fishing in the area. Current restorative justice undertakings such as those described by Hübschle et al. (2021) in South Africa will hopefully encourage similar endeavors in the future. ...
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Thesis
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