Iwi, He Whakaputanga and the Dispensation of Justice

By Ellipsister, Co-Editor

Since the breaking news of Serco’s abject failure to keep inmates safe in Mt Eden Prison, there has been much controversy and discussion around privately run versus state run prisons. Serco’s mismanagement culminated in the Department of Corrections invoking a ‘step-in’ clause in its contract with Serco and the installation of ‘a director and management team to oversee day to day running, while keeping Serco staff on site’. The public also responded through protest outside the Mt Eden facility on Saturday 1 August 2015.

Activist and member of Te Wharepora Hou, Sina Brown-Davis gave a very moving speech and rightly argued that no-one should operate a prison with a profit motive. You can read her full transcript here. Profit produces a perverse incentive to increase incarceration and cut costs by double bunking for instance, which is anathema to any notion of justice.

But the injustices meted out in our prison system are not limited to Serco run facilities.  As ex-political prisoner Te Rangikaiwhiria Kemara wrote recently State operated prisons are the real problem as inmates are forced to endure merciless conditions that are most often the primary cause of the pervasive violence throughout all Aotearoa’s prison complexes.

Kemara speaks of his own lived experience outlaying the reality of the double bunking situation. The reality of being forced to spend 23 hours a day with another person, in a cell size intended for singular occupation. A shared toilet within that space and the impact of the seasons on these conditions for inmates from breathing in the stench of your cellmate, gasping for air in the hot summer, to the freezing conditions of the winter where inmates would sleep on the floor if the heating worked because it was warmer than the bedding provided.

That many of our inmates would risk their behavioural records by taking measures to be segregated and thereby removed from their cells is indicative of the awfully distressing conditions that prevail in our prisons.

But the main point I want to talk about regards the role of Iwi in prisons. This was raised by Brown-Davis who argued that ‘Iwi-run prisons just transfer the punitive functions of the state to Māori. Running prisons is leveraging off the oppression of our people’.  Similarly, Marama Davidson (Greens) argued that iwi responsibilities ‘…do not lie with managing prisons, the role of iwi is to provide restorative justice programs, to empower the communities and health initiatives’. A message supported by Kelvin Davis (Labour) who claimed ‘it’s the Crown that prosecutes the offenders and sends them to prison, it’s the Crown’s role to ensure their safety and look after them’.

To clarify, I could never support the idea of any rōpu running prisons for profit. And in fact, I tautoko prison abolition.  However, I am deeply uncomfortable with the idea of leaving our whānau to the devices of the State who still largely operate on a retributive justice model and have a history of treating Māori with disdain.

Therefore, I’m not opposed to iwi/hapū having a hand in the management of prisons. As I have said, I wholly agree that the system we have is punitive – a system imposed on us through the colonisation of our whenua. However, I think framing Iwi involvement as a means of  oppressing our own people is framed from a stance where the presumption is ‘investment for profit’.

I firmly believe that if there were more of a whānau focus in prison facilities a perspective that Iwi would implement, where manaakitanga and whanaungatanga underpinned both (i) the rehabilitation of our inmates while incarcerated, and (ii) the attitudes of the Crown, Prison Management, Front line Staff and the Public, that this would work to reinforce our tikanga, and deliver back to us our ability to awhi mai awhi atu our whānau who have had prison sentences imposed on them by the Courts and enforced by the State.

The reality is that there is no intention at present to do away with, in Brown-Davis’ words the ‘lock-down mentality’ of our present system. But if there is an opportunity for Māori to influence the system internally and subsequently externally, then that is something I think is worth discussing.

Ought this to be the end goal? Hell no! But it might be a step toward re-claiming a space that the State has forcibly occupied to dis-empower our indigenous voices and de-legitimise our system of law, our tikanga.

Some might argue that this is reformist bollocks. That might be the case if I were arguing that the end goal were simply to address the mass incarceration of our people by giving them some tikanga walls within which they may serve their time. But that is not my argument. I see the end goal as empowering Māori to re-claim the right to dispense justice in a way that is both tika and pono. A right that our tīpuna asserted in He Whakaputanga o te Rangatiratanga o Nu Tireni (The Declaration of Independence, 28 October 1835).

The speed at which we re-claim our right is not the issue here, nor is our working with the State to take a first step in this journey. We are fighting a very entrenched system which requires many levels of support. To obtain support we must demonstrate how our tikanga will produce the results that their retributive system of justice cannot.

Sure, my view is probably a minority, and will not convince the skeptics but I would strongly support the idea of iwi/hapū managing prisons. The reasons being, in summary, (a) a tikanga approach would insist on some fundamental principles, in particular, manaakitanga and whanaungatanga in this situation, and (b) it would assist in forging a path to re-claim our rights as tangata whenua and to dispense justice in a manner that accords to Te Ao Māori.