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    Tuesday, 20 June 2017

    The Reformatory theory of punishment in action, legal opinion




    THE REFORMATIVE THEORY OF PUNISHMENT IN ACTION (
    ITS NATURE,EFFECTIVENESS  AND JUSTIFICATION):BY  CHARLES KUNGWENGWE

    Shadreck ,nick-named Shady , a young –man based  in Chiredzi 's Tshovani Township in Zimbabwe , has been incarcerated for having beaten a lady and in the process subjected her to grievous bodily harm. He is  serving five years in imprisonment right now as I  speak and write. 

    The man used to be a famous boxer in the lowveld part of the country ,till the past 7 years  when boxing facilities in Chiredzi town became dysfunctional. Ever since then  Shady has been involved in street fights ,till recently when he met his fate.

    In the United States of America the legendary  Mike Tyson used to be a similar nuisance as a deviant and  notorious street-fighter. Fortunately ,his society has a provision for talent -molding or enhancing equipment and he exploited that to his advantage by domesticating his violent instinct into a  profit-making sport. Consequently ,he rose through the ranks into one of the greatest boxers of all time and his raw talent  has benefited not only himself ,but  the entire country as well.
    As can be seen , Shady  is to a small extent a criminal but largely a victim of our society which does not promote someone 's talent. The boxer is not alone in this predicament  but there are also a lot more and something therefore needs to be done urgently to arrest the situation before it goes out of hand.

    And this conclusion forces us to venture into the reasons for punishing offenders. Legally speaking ,we refer them(reasons) to as theories of punishment.  

    Which theory of punishment is best to apply on such people: The Absolute\Retributive Theory; Relative(Deterrence, Preventive or Reformative\Rehabilitative )Theories or Combination  Theory of  Punishment  (and the latter is a fusion of the Absolute and Relative Theories)? 

    This paper will discuss the Reformative or Rehabilitative Theory , in particular . First this is the strongest aspect of the theory, punishment is not regarded an end ,in itself ,but a means to an end ,instead. And in this context ,we punish an individual in order to 'convert 'him into a better being(the end) and that is initiation through suffering. The approach  is rooted in the idea that every person is a potential criminal and the root cause of his deviance is  either  bad socialization or a psychological blemish. An illustrative example of this psychological flaw can be noted in homosexuals (of course this sexual orientation could also result from socialization).Such a person ,goes the argument , is sick ,and sick people must not be ostracized or punished  but ,instead ,assisted in whatever way possible.

      This socialization emanates from various sources ,particularly a bad upbringing. Values are not inborn but ,on the contrary ,acquired . In the novel 'Things Fall Apart',Chinua Achebe is right in his telling remark,
    'When the mother cow is chewing grass, its young ones watch its mouth(and follow suit in the process , I add)'.For example ,if one comes from a family of prostitutes chances are that she will most likely also graduate into a prostitute .

    Sociologically speaking ,the environment ,more than heredity ,has a strong bearing on our conduct and this is the nurture –nature controversy.

    Similarly, if a person is starving and passes-by a restaurant where he captures the aroma of  mouth-watering ,delectable dishes ,that can easily weaken his powers of resisting the temptation to steal since this is a do –or-die situation.

    Two more examples ,I believe will harmer the point home: If  someone were to be coned by a Nigerian national that would not come as a surprise to us because that is how the latter  has been 'socialized' so to speak .
     And  people coming from South Africa are believed to be of a 'violent' disposition. It is simply because of the nature of their socialization and our upbringing as well as the way we  stereotype these two groups of nationals.
     The issue of axiology is relative ,contextual and or situational. For example ,in South Africa the logic of force is held in high esteem while in most civilized societies it is regarded  taboo as  people prefer the force of logic .What  about people  who have never been loved in their infancy? Would it not be unrealistic ,if not romantic ,to expect them to graduate into loving parents?
     Therefore ,to a large extent ,it is their communities which are problematic.

    That being the case when judging or sentencing the so-called criminals we should be asking who ,between the perpetrator  himself ,and the socializing agent ,is a Criminal. We also need to empathize with the 'Criminal' so that we understand the offence in its proper historical context. We should not judge a person without taking due regard to personal circumstances that confront(ed) him.

    Accordingly, this victim of bad socialization must be removed from that environment of bad people or criminals or tempting environment and placed in a good setting. He/she should then be remolded and constantly monitored till he manifests desirable changes. Indeed most criminals have reformed as a result.

    However ,the weakness of this theory is that it is too mechanistic and portrays men as a helpless tool in the societal machine when ,rational as he is ,man should be able to fashion out his own destiny, ie to be either a criminal or law –abiding ,responsible citizen.

    Admittedly, a handful of some people commit crime out of malice or demonic inspiration but a good number do so out of need or want.

    Before concluding, it must be made crystal clear that, in order for this theory to function well, the court must ,either at the instance or the  defense council or through its own discretion , always engage the services of social workers ,psychologists and sociologists to try and trace the criminal's situation/problem.

    Having said that, the concluding remark is that the reformative theory will go a long way in rehabilitating criminals into law-abiding people and must be resorted to as much as possible.//Opinion

              





    Nkulumani Mlambo (0772 118 533/0715 505353)
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