Macro-justice and criminal administration system in Nigeria
It is characterized by arrest and detention, even before investigations are concluded, court congestions, overcrowded prisons and long winding adversarial judicial processes.
It is a two-way justice system between the ‘mythical state’ and the offender, with very peripheral, if any, participation of the victim.
Others who are affected by the crime or have a stake in its aftermath are total outsiders.
It is a justice of deterrence and incapacitation, temporarily appealing for its immediacy in containing any threat to law and order in society.
No doubt, its utilitarian value has its merits but at what cost?
The socio-economic costs of macro justice are astronomically high in terms of over stretched criminal justice agency personnel and infrastructure, consequential delays in the administration of justice, with the inherent denials of inmates basic rights, epitomized by degrading custodial conditions.
It is no one’s fault, as it were, it is the DNA of macro justice.
But, can it be mitigated, just like equity mitigates the harsh principles of law? Yes. How? By adopting a complementary system of criminal justice that is therapeutic and incorporates the principles of “micro justice.”
By figures sourced from the National Bureau of Statistics, between years 2005 and 2009, about 543,536 offenders were sentenced to various prison terms.
This huge number of convicts was largely made up of two classes of convicts.
First time offenders were about 247,921 constituting about 45.6 percent of those sentenced. Recidivists of varied degrees, made up the balance of 295,615 constituting 53.4 percent of those sent to the prisons between 2005 and 2009. The trend has not changed.
Another salient and unfortunate feature is the age factor. In 2013, 20.42 percent of convicts were in the 21-25 year age bracket, while 61.25 percent were in the 26-50 years age bracket.
Except the causative factors responsible for their anti-social behaviour are identified and dealt with, they are potential recidivists.
Awaiting trial inmates have not been added to the picture. Between the same period, 2005-2009, awaiting trial inmates constituted 56.3 percent of the 722, 986 persons held in Nigerian prisons.
Awaiting trial periods remember can be very elastic, as a result of a host of factors, such as inconclusive or stalled investigations, owing to IPO transfer or such other matters bordering on legal representation, technicalities and the inescapable adjournments.
There have been notorious cases where some have spent 17 years in prison awaiting trial, only to be acquitted at the end of eventual trial.
High incidences of first time offender incarceration, recidivism and awaiting trial inmates are the hallmarks of macro justice.
It does not inquire into the circumstances of the commission of crime, certainly not of the accused, nor does it concern itself with the victim.
Its only concerns are law and order questions of, what crime has been committed and what is the penalty?
Macro justice operates on a tricycle – police, court and prison!
It spurns congested courts and brimming prisons. The Chief judge of Lagos state recently lamented: “Lagos State Courts in a State of Emergency” because of congestions, which occasioned delays and public ridicule of the judiciary.
With respects, it is not only the delay that is ridiculing the judiciary.
What about the unguided sentencing practice, which often does not consider the criminogenic needs of the accused person, in coming to a sentencing decision?
What we have presently is, all judicial decisions, always nearly ends in prison.
Where bail is granted, it usually is on such onerous terms, it’s easy to see it is meant as a charade, a subterfuge of sorts. Bails are often inconsiderate of the means and circumstances of the accused person, a kind of revenue generating exercise.
On prisons, Professor Yemi Osinbajo, Vice President of Nigeria, speaking recently through the Minister of Interior, said: “The prisons are turning its inmates into animals.”
Ordinarily, prisons are meant to reform, unfortunately, its philosophy is deterrence, ‘hard bed’, ‘hard fare.’
All inmates are dumped together, awaiting trial, first timers, recidivists, young and old.
Resultantly, you have criminal socialization and radicalization. Should all offenders of the law end up in prison?
That is what Macro justice does. It is retributive, it is philosophical premise is deterrence and incapacitation.
It asserts the right of the sovereign (state) as the supreme power to inflict pain upon a subject on account of a crime committed by him.
The Controller of Lagos state Command of Nigerian Prisons service, recently cried out “KAI and Mobile courts are congesting prisons.”
Is there no other approach to justice that can be cognizant of the wider interests involved in the pursuit of justice and respectful of the fundamental rights of the parties, mindful as well that, except they die in prison, they will one day come back to the society? There is.
Restorative justice as a system of justice is premised on therapeutic jurisprudence.
Its concerned not only with punishment, but very importantly, holds the offender accountable to make amends for the hurts caused the victim in course of his crime.
Restorative justice is concerned with both ‘macro’ and ‘micro’ justice.
Conscious of the many troubles of our extant criminal justice system, the Administration of Criminal Justice Act 2015 purports a shift in our philosophy of criminal justice from punishment to restorative justice and protection of society.
It has made significant provisions aimed at ameliorating the pains of awaiting trial inmates with the provisions for detention timelines, abolition of holding charges, magisterial oversight of police stations to ensure compliance.
Good intentions do not translate to good implementations, in the absence of requisite infrastructure.
Of particular interest here is, the inclusion of restorative outcomes like victim restitution and return of property as well as use of non-custodial sentencing disposition like community service and parole. Obviously, this is restorative justice as a sentencing tool.
Restorative justice is defined more by its processes than by its outcomes.
Its therapeutic quality is in its processes, the participation of all parties with a stake in the crime committed and its aftermath – offender, victim and interested parties in the resolution of the complaint.
A learned author has rightly argued that, 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 person’s wellbeing.
Macro justice processes are dehumanizing, makes nonsense of constitutionally guaranteed rights, for instance, parading of suspects, even before they are arraigned. What does it evoke, anger and bitterness against the system, not remorse nor repentance.
Crime must be punished, but the punishment, to serve the ends of justice must be appropriate for reformation.
The offender must be given a fair chance to take responsibility for his crime and commit to dealing with the causes of his anti-social behaviour, with the assistance of relevant persons and social institutions, like rehabilitation and vocational centers.
Restorative justice defines crime, not as a violation of the law but a violation of persons and relationships.
Its aim is to heal the harm and hurts caused by the crime, necessarily, involving the offender and the victim, in appropriate cases.
Retributive justice theory believes that pain will vindicate.
In practice however, this is not so, otherwise we would not have the high incidence of recidivism evident in our criminal justice system.
On the other hand, restorative justice believes that what vindicates is acknowledgement of victim’s harms and needs, coupled with offender taking responsibility for the harms it has caused and taking steps to address the causes of their anti-social behaviour.
Restorative justice takes into account the macro, law and order interests of the state (public) as well as the micro, punishment and reintegration needs of the offender and victims healing and validation needs.
In our circumstance of congested courts and brimming prisons coupled with the inherent frustrations, because of judicial processes that deepen societal wounds and conflicts rather than promote healing or peace, (There is the common saying that, you do not go to court and return to remain friends.)
Restorative justice not just as sentencing protocol or guideline but, as a pre-trial diversion and mediation in criminal matters, provides a very viable option as an alternative and complementary justice system, that caters to the needs of all those involved and affected by the commission of a crime-offenders, victims and community.
It is minimally demanding on custodial costs and infrastructures, essentially geared towards offender responsibility, reformation and victim healing, validation and social/communal harmony.
Restorative justice, with respect, should be to our criminal justice system, what the principles of equity are to the principles of law.
It balances macro and micro principles of justice to deliver a responsible and healthy system of justice that promotes peace and harmony.
Iwuagwu is the Executive Director, Prison Fellowship Nigeria and co-ordinator, Lagos State Restorative Justice Project Steering Committee.