Chapter 12: Criminal Courts and Procedure
Stephen C. Thaman* 1 1.1 HISTORICAL ROOTS OF CRIMINAL COURTS AND PROCEDURE The Importance of Customary Procedures: An Emphasis on Victim–offender Mediation Historically, when a criminal act was committed and someone caught the culprit in the act, he was either summarily killed or, at best, hurriedly sentenced to death by an ad hoc court, where the victim or the victim’s family might act as executioner.1 Otherwise, procedure was always accusatorial, with the victim, the victims’ family or clan, accusing the suspect.2 The community then usually pressured the victim’s clan or family to negotiate with that of the suspect to resolve the case peaceably and avoid blood revenge and the prospect of a long-enduring feud.3 Compromise was much more important than accurately assessing comparative guilt or punishment.4 If families or clans could not regulate the matter themselves, they would call on a mediator to resolve the dispute.5 The procedure would usually end in payment of compensation to the victim’s family or clan. This payment took the form of money, livestock or other commodities. The family or clan collectively shared the guilt, which induced them to deter crimes committed by their members. The goal of the procedure was reconciliation and restoring the peace of the community, and only incidentally that of determining the truth.6 The mediators were respected problem solvers, such as chiefs or elders, who had no enforcement power, and thus required consensus and community involvement to make sure people respected the settlement.7 The mediator often worked privately with each...
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