An Abomination Or Necessary Evil – TheNigerialawyer

The picture of a purported settlement agreement executed between
an alleged offender and the parents of a fourteen-year-old girl who
was defiled has been making the rounds on Social Media, with many
lawyers and PUBLIC commentators condemning the said settlement
agreement which was presided over by Office of the Commissioner of
Police of Rivers State.

Many lawyers have opined that this settlement agreement is alien
to our criminal jurisprudence, as offenses dealing with rape,
sexual harassment and defilement of minors should be placed outside
the scope of operation of Alternative Dispute Resolution (ADR)
mechanism in order to emphasize the gravity of such offenses.

It has become necessary to critically examine the position of
the law on ADR in criminal litigation in Nigeria. Does the law
expressly prohibit the “settlement” of criminal cases? Before
engaging in an exposition of the jurisprudential principles of
criminal litigation as it applies to this case, it is pertinent to
briefly state the facts of this notorious case for the ease of
assimilation.

The father of a fourteen-year-old girl, upon the advice of his
Counsel brought a petition to the Office of the Commissioner of
Police in Rivers State, alleging that his daughter had been
sexually defiled by a certain Chief in the community. They sought
the arrest and prosecution of the offending Chief. Subsequently,
the suspect who was accosted by the police confessed to his
complicity.

An agreement was then reached between the accused person and the
victim’s family that the accused person and his family would
apologize to the victim and her family, and also be responsible for
the medical bills of the victim.

It was also agreed that the victim would undergo monthly
check-up at a specified hospital for six months. It was further
agreed that upon the final check-up on the sixth month, the victim
would withdraw the petition if she has been certified to be
medically fit and okay. The accused person also agreed to pay a
specified sum of money as immediate compensation to the victim’s
family. The agreement was drawn up by the legal Counsel of both
parties and executed by the parties and their Counsel. The victim,
being a minor did not sign this agreement, but it was signed by her
father.

The picture of this settlement agreement which was leaked on
Twitter as soon as it was executed has attracted serious opprobrium
from different quarters. Alternative Dispute Resolution
(hereinafter “ADR”) is not alien to our criminal jurisprudence.
Before the introduction of colonial rule in Nigeria, disputes were
settled amicably amongst the interested parties. There was no
distinct discrepancy between civil and criminal cases in
pre-colonial cases, as there was no codified system of laws. The
head of communities in most instances acted as an umpire in
settling disputes. Where offenses were committed against a member
of the community, the offender would be made to pay restitution to
the victim, and also be made to suffer moral reproach and disgrace.
The principle of restitution was, however, the most paramount
principle behind the punishment of civil offenders in pre-colonial
Nigeria.

However, with the advent of colonial rule, and subsequently
independence, the legal system became formalized with the
introduction of the courts and prison system. Offenders were
prosecuted by the state on the behalf of the victim and the
community, and in most cases, sentenced to either jail term or
compelled to pay fines to the state. There are several principles
behind the concept of punishment in modern-day criminal
jurisprudence, including:

1. Retribution: This is based on the biblical
   theory of an eye for an eye, wherein offenders are made to suffer
   punishment parallel to the wrong they have committed. Sentences of
   imprisonment, the death penalty, and corporal punishment are based
   on the retributive philosophy.
2. Restitution: Here, the offender is given the
   chance to make amends for his past misgivings. The offender is
   punished in such a way that the society and/or the victim are
   compensated for his crimes. Sentences such as community service,
   fines, and orders for forfeiture of property are classic examples
   of the restitutive principle.
3. Deterrence: Oftentimes, some offenders are
   used as scapegoats to teach a lesson to other members of the
   society to desist from engaging in similar vices. This principle
   which is also known as the utilitarian principle by Western Legal
   Scholars is more pronounced where the victim has shown remorse or
   has already offered to make restitution for his actions. Sentence
   of both imprisonment and fines on convicts is an example of the
   deterrence philosophy at work.
4. Rehabilitation: This theory aims at correcting
   and re-integrating offenders into society. The offenders are given
   the lessons which make them vilify their previous crimes, and are
   re-integrated into the society to live crime-free lives. This
   principle is mostly utilized for juvenile delinquents and
   first-time offenders.

The Nigerian criminal justice system which attempts to combine
all the above principles can, however, be said to be largely
retributive in nature. It is trite that no person shall be punished
for an offense except if such punishment is defined and the
punishment prescribed in a written law. A critical review of the
penal laws of Nigeria will reveal most criminal punishments are
retributive in nature. It places much premium on inflicting
punishment and pain on the offender than any real attempt to reform
and reintegrate the offender back into society. From the time an
offense is committed to the trial and judgment, all our legal rules
are concerned with is proving guilt according to the letters of the
law. Little or nothing is done about repairing the damage done by
the crime. Victims of crime and even the community who suffer the
direct impact of the offense are relegated to the background.

The resultant effect of this over-reliance on the retributive
system is that the courtrooms are over-congested with too many
cases and litigation is prolonged before justice is achieved. It
takes time for the guilt (or innocence) of an accused person to be
established, due to the traditional problems of shortage of
facilities associated with our judicial system. Trials at the high
courts take as long as three years before a verdict is reached. An
appeal from the Court of Appeal to the Supreme Court can span for
as long as six years. Ordinarily, an accused person remains
incarcerated in custody as a guest of the state during his trial
and may be discharged by the apex court on appeal. He would then be
made to have suffered unjustly for an offense in which he is
innocent. The case of Shande v State (2005) 12 NWLR (PT
939) 301 wherein the accused person was acquitted by the
Supreme Court after facing trial for eight years is a classic
example of the tribulations facing our retributive criminal justice
system.

The proximate impulsion to this treatise being the recent
settlement agreement to oust the jurisdiction of the court in
trying an alleged criminal offender is the critical review of the
application of ADR to criminal litigation in Nigeria. Recently, the
policy framers of the Nigerian Criminal Justice system have begun
to embrace and integrate ADR into our criminal jurisprudence. The
Administration of Criminal Justice Act (ACJA) contains a legal
framework for the adoption of a mild form of ADR via plea
bargaining in Nigeria. In the case of FRN v Igbinedion
& Ors (2014) LPELR-22760 (CA), the Court of Appeal in
defining plea bargaining adopted the definition of the Black’s Law
dictionary thus:

“What is a plea bargain arrangement? Bryan Garner’s Black’s
Law Dictionary 8 the Edition at pg. 1190 defines plea bargain as “A
negotiated agreement between a prosecutor and a criminal defendant
whereby the defendant pleads guilty to a lesser offense or to one
of multiple charges in exchange of some concession by the
prosecutor usually a more lenient sentence or a dismissal of the
other charges.”

Plea bargain is also known as plea agreement or plea deal,
although not expressly stated to be an ADR mechanism, can be
regarded as such because its form and effects conform to the
principles and aims of ADR. It has been submitted that plea
bargaining is a case management strategy like other ADR mechanisms
which brings about effective case management.[1] In a plea
bargain arrangement, the accused person agrees to plead guilty to
the some or all of the offenses he is charged with, in return for a
lesser punishment. Plea bargains are mostly activated in corruption
trials involving the EFCC. It was used in the trial of ex-IGP of
Police Tarfa Balogun, and the trials of ex-Governors Lucky
Igbinedion, and Diepreye Alamieyeseigha of Edo and Bayelsa States,
amongst others. The advantages of plea bargain which have been
given judicial notice by the Court of Appeal in FRN v
Igbinedion (Supra) include:

“(1) Accused can avoid the time and cost of defending himself at
trial, the risk of harsher punishment, and the publicity the trial
will involve.

(2) The prosecution saves time and expense of a lengthy
trial.

(3) Both sides are spared the uncertainty of going to trial.

(4) The court system is saved the burden of conducting a trial
on every crime charged.”

It must, however, be stated that plea bargaining can only be
activated where there is a pending charge before a competent court.
In the Rivers State purported settlement agreement under
consideration, the matter was still being investigated by the
Police, who were yet to prefer a formal charge against the accused
person. Therefore, it can be submitted that this does not amount to
a plea bargain arrangement. The best legal terminology to describe
this settlement is mediation. It is clear from the facts that the
agreement was signed subject to the supervision of the Nigerian
Police Force who was investigating the matter. It is pertinent to
note that the Police Force is given wide powers under
Section 4 of the Police Act which provides
that:

“The police shall be employed for the prevention and detection
of crime, the apprehension of offenders, the preservation of law
and order, the protection of life and property and the due
enforcement of all laws and regulations with which they are
directly charged, and shall perform such military duties within or
outside Nigeria as may be required of them by, or under the
authority of this or any other Act.”

The Police, therefore, have the primary responsibility of
apprehending offenders. But they are not saddled with the task of
punishing offenders. However, they have a general duty to maintain
peace, law, and order in society. It is the duty of the state to
prosecute and punish offenders, and not the police. Before the
state can prosecute, the police must first file a first information
report which informs the relevant state department (Ministry of
Justice or Department of Public Prosecution) of the purported
commission of the offense. It is important to note that the entire
criminal system in Nigeria is based on the exercise of
discretionary powers by the parties involved. The Police Force in
submitting an information report to the Department of Public
Prosecution exercises discretionary powers. They are not bound to
charge every perceived offender to court. The Ministry of Justice
or Department of Public Prosecution (as the case may be) is also
not under any obligation to prosecute all persons who have been
referred to them. The Supreme Court in the locus classicus case of
Akpa v. State (2008) 14 NWLR (Pt.1106) 72
explained this hallowed position of the law when the Noble Lord
Nikki Tobi JSC opined thus:

“The prosecution has an unfettered discretion to
prosecute person in court and because the discretion is unfettered,
court of law do not have the power to question it…The only
jurisdiction of the court is to try accused person presented before
it for prosecution. The prosecution is not under any
regimental duty or any duty at all, to charge all possible accused
persons“. (@ pg 18 paras A- D).

Therefore, it is submitted that the Police Force and the
Ministry of Justice should be exonerated from whatever legal and
moral vilification that the purported settlement agreement
attracts.

As stated earlier, the purported settlement can be best
described as the proceeds of a mediation agreement. The
Victim-Offender Mediation program is not unknown to international
jurisprudence. The Victim-Offender Mediation program is aimed at
promoting direct communication between the victim and the offender.
The victim has the opportunity to ask questions, address the
mental, psychological and emotional trauma caused by the crime and
its aftermath and seek reparation.[2] It lays more emphasis on
restitution and reconciliation of crime-related offenders through
one on one meeting between victims and offenders subject to the
oversight of trained mediators, rather than focusing on the
retributive system which characterizes our outdated criminal
litigation system. This method is the oldest and most widely used
form of ADR in criminal cases in other jurisdiction especially when
juveniles are involved.

A proper analysis of the terms of settlement of the Rivers State
Agreement reveals that each of the clauses is geared towards the
restorative or restitutive principles of punishment. The accused
person and his family were made to undergo moral reproach by
publicly apologizing to the victim and her family. The case has
already gained sufficient notoriety, and his identity as a
potential sex offender is not in question. Furthermore, and in
addition to the moral punishment of apology, financial sanctions
have also been imposed on him. The fine which he would pay goes
directly to the victim. This is unlike the traditional penal system
where fines imposed by the court are payable to the state and
become the property of the state. The offender has thus been
compelled to make amends to the victim by paying for her medical
treatment and also by the payment of damages.

A critical evaluation of the entire agreement will reveal that
the mere execution of the agreement does not immediately oust the
jurisdiction of the court to prosecute the accused offender. 
In fact, the petition submitted to the police was not withdrawn at
the time of executing the agreement. The most important clause in
the agreement is term No. 5 which provides that the victim and her
family will withdraw the petition if she is certified to be
medically fit after the final medical check to be carried out on a
pre-determined date. Thus, the victim is given the freedom to
pursue the petition in the event that she has not benefitted from
the proposed restitution. The entire agreement is one that
exemplifies the restorative approach to criminal jurisprudence
which places the victim at the center of proceedings, as opposed to
the traditional retributive approach wherein the offender is the
center of proceedings. It is only in extremely rare cases involving
theft of property that the accused person in criminal proceedings
is compelled by the courts to make restitution to the
victim.[3]

It is however understandable that the gravamen of public
opprobrium against this purported settlement agreement (and
Victim-Offender Mediation) is the perceived trivialization of the
grave offense of rape and sexual molestation. It has been argued
that such agreement operates to make the offence of rape very
lucrative and appealing to potential offenders who now know they
can avoid jail term by the simple payment of compensation to the
victim. In balancing this conflict between the need to impose
retributive/deterrent punishment on offenders and the need to
engage in restitutive practices, the dictum of the Court of Appeal
in the case of Okomu Oil Palm Ltd v Okpame (2007) 3 NWLR
(Pt. 1020) p.71 is most instructive thus:

“After all, it must be remembered that justice is not a
one-way traffic. It is not justice for the plaintiff alone. It is
not even only a two-way traffic in the sense that it is justice for
the plaintiff and the defendant alone. I think really justice is a
three-way traffic in justice for the plaintiff who is crying for a
redress of the wrong done to him; justice for the defendant who is
crying that he should be heard and his defence considered before
being ordered to pay any sum claimed against him and also before
being mulcted in cost; and finally but very important, justice for
the society at large whose social norms and psyche are certainly
going to be adversely affected if it cannot be seen by the common
but reasonable man that upon the facts as laid down, justice in the
real and true sense of that word, has been seen to have been done
by the arbiter.” (Per Aderemi JCA).

Hence, has justice been done to all aggrieved parties in this
case? Has justice been done to the accused offender who has been
made to make financial restitution for the consequences of his act?
Will this deter him from committing similar act in the future? Has
justice been done to the victim who has received compensation for
the injury she suffered? Has justice been done to the victim’s
family who has received an apology and monetary compensation from
the offender and his family? Do this apology and monetary
compensation diminish and overshadow the shame of having a defiled
daughter? Has justice been done to the state by this agreement? The
agreement has saved the state the resources it would otherwise have
expended in prosecuting and punishing the offender. However, will
this prevent future occurrences of similar crimes in Rivers State?
Will the society learn from this event and come to the conclusion
that defilement of underage girls is unacceptable, or will they be
willing to risk the venture of public apology and payment of
monetary compensation just to have a bite at the forbidden
apple?

This writer invites his readers to draw their conclusions.

Nonso Anyasi is a Lagos-based Lawyer. He tweets
@Oluwanonso_Esq

[1] Alternative Dispute Resolution and Its
Relevancy in Criminal Matters, Aduaka & Onnome, International
Journal of Business & Law Research 6(1):75-84, Jan.-Mar.,
2018

[2] J.R. Gehm “Victim-Offender Mediation Programs: An
Exploration of Practice and Theoretical Frameworks‟ Western
Criminology Review, Vol. 1 No http://wer.sonoma.edu/v1n1/gehm.html^[1] 

[3] See the case of Ikpe v FRN & Anor
(2018) LPELR-45567 (CA)

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