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Thaman, Stephen C. --- "Criminal Courts and Procedure" [2012] ELECD 769; in Clark, S. David (ed), "Comparative Law and Society" (Edward Elgar Publishing, 2012)

Book Title: Comparative Law and Society

Editor(s): Clark, S. David

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849803618

Section: Chapter 12

Section Title: Criminal Courts and Procedure

Author(s): Thaman, Stephen C.

Number of pages: 19

Extract:

12 Criminal courts and procedure
Stephen C. Thaman*


1 HISTORICAL ROOTS OF CRIMINAL COURTS AND
PROCEDURE

1.1 The Importance of Customary Procedures: An Emphasis on Victim­offender
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, proce-
dure was always accusatorial, with the victim, the victims' family or clan, accusing the sus-
pect.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 assess-
ing 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 ...