The saying “equity is as long as the Chancellor’s foot” reflects the criticism that decisions in the court of Chancery were subjective and varied depending on the Chancellor’s personal views and conscience rather than being based on fixed principles.
Public trust and confidence in any adjudication process is key, not only to its acceptance but also to its capacity for assuaging revenge and recourse to self-help. There is presently a rash of restorative justice.
Practice as part of the criminal justice adjudication process is the time to provide a clear road map. Before its outcomes become suggestive and whimsical, it is time to chart its practice buoyed with a national policy and regulatory organs, that will ensure training, certification and control.
Restorative justice as a criminal justice adjudication process is gaining traction, with involvement of not only statutory criminal agency staff and officers but also trained relevant civil society groups. It has become very important to have a national policy on restorative justice as a pre-trial diversion system.
This is to ensure proper regulation and control of the how and how nots of the practice. More so, as it affects law and order, public safety and security. Public confidence in its capacity and efficacy is a sine qua non.
The Nigerian Correctional Service Act 2019 remains a water shed legislation that has not been reasonably operationalised, to deliver on its promises. Particularly with respect to its section 43, which in my opinion holds the key to decongesting both the courts and custodial centres. For this to happen, there needs to be an intentional and purposeful collabouration and synergy between the criminal justice agencies and civil society groups, that are involved in prison ministry and inmates’ reformation, rehabilitation and reintegration programmes.
Government alone cannot do it; this calls for collective social action. A formal national policy has become imperative, complemented with necessary regulatory organs to set standards of training, certification, practice and control.
In spite of best efforts to address prison congestion, overcrowding and the attendant degrading and inhuman conditions in our custodial centres with its contingent horrifying long wait for justice; our awaiting trial numbers still triple the number of convicts.
The issue has gone beyond rhetorics, seasonal jail deliveries by chief judges and periodic executive clemency interventions.
To shore up public trust and confidence, restorative criminal justice practice now needs to be formalised, structured and contextualised within our criminal justice adjudication ecosystem. Its practitioners must be trained, certified and licensed. There needs to be acceptable standards of ethics and operational values. Else we could be confronted with processes that are as long of the foot of the facilitators, subjective and whimsical.
There is the urgent need for public/private partnership to construct a viable platform for the practice of restorative justice, that has capacity for returning inmates reintegration back to society, to become contributors to our national wealth, gross domestic product and social civilisation. Crime will be curtailed and recidivism tamed.
Government needs to set up a National Restorative Justice Practice Team, for harmonisation of plans and procedure with operational guidelines for the use of restorative justice as access to justice and custodial centers decongestion programme.
They will set out the criteria for application of restorative justice as pre-trial diversion from full criminal trial. This will fast track awaiting trial processing, depressurise custodial space and Magistrate court dockets. Improve quality and access to justice.
The team will call for partnership with qualified NGOs whose members can volunteer as facilitators along other volunteers from the criminal justice agencies. Draw up curriculum for Reform Justice facilitators training and certification. NGOs should be able to commit to payment of honorarium of facilitators from their organisation, until government is able to fully take up the financial burden.
Meanwhile, government through the ministry of justice may consider, as motivation, issuance of Pro-bono facilitators Certificate of Volunteer Service.
As part of sensitisation and mobilisation, conduct workshop in-custodial centers to sensitise and pre-qualify ATMs in custody for diversion to the restorative justice pre-trial diversion channel. Determine inmates whose offenses are misdemeanors and first timers, who are willing to be processed through the RJ channel and willing to meet their victims/admit commission of offense.
Ethics is the product of principles and values. Ethics is the how, while values reflect our beliefs or principles. At a minimum, a facilitator must be cognisant of the definition of restorative justice as an inclusive, therapeutic and conversational approach of justice that aims to repair the harm caused by crime, buoyed by values and ethics driven practice.
The process should be led by a facilitator, in such a way that promotes public confidence, offender responsibility, commitment to pro-social behaviour and victim healing, validation, capped with communal restoration.
Restorative justice processes are managed by facilitators, who in effect are the face of the integrity or otherwise of restorative processes, before the offender, victim and prosecutorial authorities and community. Their proper ethical comportment and value-based practice is critical to public confidence and therefore its acceptance as part of our criminal justice practice.
Issuing a National Restorative Justice Policy at this point, will boost and catalyse prison and courts decongestion and free up access to justice as complement to our social civilisation. A National Policy on Restorative Justice, will complement the 2015 Administration of Criminal Justice Act as well as the Nigerian Correctional Service Act 2019. Timely dispensation of justice and humane custodial condition are cardinal features of a progressive society and the injunction of global, continental and municipal human right legislations.
The Nigerian Correctional Services, by the 2023 constitutional amendment of 1999 Constitution of Nigeria (As Amended), has been moved to the concurrent list and seem to give impetus to innovations in managing our custodial centers, consistent with continental and global best practices with respect to managing persons in conflict with law and in custody.
Caveat
The improvement of our criminal justice system as well as the humanisation of our judicial process and correctional systems to improve access to justice, reformation, rehabilitation and reintegration of ex-custodial inmates must be objective, intentional and purposeful.
Devoid of what has been termed the Politics of Ownership. Already, there exists in most, if not all states of the federation: Criminal Justice Sector Reform Committee, headed by the Chief Judge of the state. Other members include the Attorney General, Commissioner of Police, Controller of Corrections and other key security service heads.
With due respects, I think this body is eminently qualified to decide the broad parameters for the pragmatic, effective and objective use of restorative justice to improve our judicial process and correctional service ecosystem.
The Ministry of Justice in tandem with the Nigeria Correctional Service can then, coordinate the whole system, so that, the benefits of restorative justice as a therapeutic adjudication system can be manifest to all; including cost savings, behavioural and cognitive modification of inmates for a safer, better and productive society. This way, we can avoid what a respected friend referred to as, “Politics of Ownership.’’
A syndrome which has stifled many otherwise noble and laudable initiatives. The wisdom of King Solomon in 1 Kings 3: 16-28, comes to mind. Two women, one accidentally laid over her child to death, wanted the living child of the other mother to be sliced into two. Solomon was able to discern and saved the living child. Let everything be done to allow Restorative Justice live and thrive, to our collective good.
We must adroitly avoid this pitfall, work together, public and social society organisation to improve our judicial and correctional system with the concomitant growth of our social civilisation. We need collabouration and synergy, not politics of ownership, for the good of our fatherland.
Iwuagwu, a lawyer, is the former executive director of the Prison Fellowship Nigeria (PFN).
