Imperative of correctional justice in Nigeria
What is justice for the offender and the state, may not be justice for the victim. For justice therefore to be justice, it must meet the needs of the offender, victim and society.
Criminal punishment must be with a view to correct the anti-social predisposing causes in the offender, to ensure that he does not return to his old ways. The overarching rationale of our criminal justice has remained just deserts, anchored on deterrence, which has, inter alia, spun custodial congestions, dehumanizing and degrading treatment of those in custody. As Karibi-White JSC (as he then was) put it in his book, Groundwork on Nigerian Criminal Law “the repression of anti-social conduct by means of punishment is the paramount objective of the criminal law’’ This repressive objective has come at a huge socio-economic cost, not the least a backward social civilization.
This unsatisfactory state of affairs precipitated the promulgation of the Administration of Criminal Justice Act 2015, which sought to remedy some of the harsh and cruel effects inherent in our extant system – congestion, cruel, degrading and inhuman custodial conditions.
The Act provides for the administration of criminal justice system, which promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crimes and protection of the rights and interest of the suspect, the defendant and victims in Nigeria.
Had the Act worked as expected, we would not have about 74, 500 men women and children in custody, some for being poor and unable to furnish police bail. A bricklayer, victim of police raid, spent six years in Kirikiri, in spite of DPP’s legal advice five years earlier, exculpating him of any wrong doing. Those yet in custody are now in existential danger of Covid-19, necessitating ad hoc presidential fiat to the Chief Justice of the Federation for special courts to speed up trials and decongest the prisons.
It is time we tried another jurisprudence of justice, whose processes are inclusive and therapeutic, cognizant of the interests of all parties with a stake in the crime committed and its aftermath.
Therapeutic jurisprudence suggests that it is not only the content of a case but also the process used by the judicial officer in dealing with the case that affects a persons’ wellbeing.
Our extant criminal justice system is cumbersome, overtly technical and unrepresentative of the justice interests of stakeholders with a stake in crime and its aftermath. It is apposite here to, very humbly, invite the Hon. Chief Justice of Nigeria, to among the special courts, consider setting up Restorative Justice Pre-trial Mediation Centers as part of the criminal adjudication system in Nigeria. The restorative outcomes provided in ACJA 2015 and NCSA, 2019, cannot deliver for lack of appropriate justice system and processes.
Nigerian Correctional Services Act 2019 in Part B, provides for Custodial and Non- custodial Directorates. Section 37 (1) (a) to (e) says the Nigerian Correctional Service is responsible for the administration of non-custodial measures, including Community service, Probation, Parole, Restorative justice measures, and any other non-custodial measure assigned to the Nigerian Correctional Service by any Court of competent jurisdiction.
Section 43 (1) provides that the Controller General shall provide the platform for Restorative Justice measures; including (a) Victim-Offender Mediation, (b) Family group conferencing, (c) Community mediation and, (d) any other mediation activity involving victims, offenders and where applicable, community representatives.
Section 43 (2) provides that, the Correctional Service shall liaise with court and other relevant agencies in the provisions of the measures in section 43 (2). Section 43 (3) (a) –(d) provides that: Restorative justice service may occur at Pre-trial stage, Trial stage, during imprisonment and post imprisonment.
These are very laudable provisions, which if operationalized, will be a huge fillip in the administration of criminal justice that is humane, corrective, effective and efficient. Possibly sensing the need to bridge the lacuna, the Chief Judge of Lagos state in 2019 established Restorative Justice Centres and issued Restorative Justice Practice Direction to: ‘’Provide guidance for judicial officials in the resolution of criminal cases where the parties have adopted to settle the matter through Restorative Justice, Pre-charge, Pre-trial, Pre- conviction, and in the disposition of cases post conviction.’’
The Practice Direction is applicable in the Magistrate and High Courts. It excluded felonies from Restorative Justice processes. Like the provisions of NCSA2019, Restorative Justice applies pre-charge, post-charge and pre-trial.
This provides the requisite vehicle for Sections 43 (2) and 43 (3) of NCSA 2019 and attainment of the aspirations of ACJA 2015. Recall that, Restorative Justice measures provided in Section 43 (2) like victim/offender mediation, family conferencing are adjudicatory processes which, by Section 6 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) rightly belongs to the judiciary.
The parties agree on what is justice for the victim, state and offender. What is more, Restorative Justice covers the full spectrum of justice, macro and micro. Delayed and denied justice has been the emblematic Achilles heel of our extant criminal justice system. It has spurn discontent, Custodial congestion, criminal socialization and recidivism. Therapeutic jurisprudence is curative, holistic and cost efficient and accords with the themes of ACJA 2015 and NCSA 2019.
Iwuagwu is the Executive Director, Prison Fellowship Nigeria.