Restorative Justice And The Case For Victim-Offender Mediation By Valentino Buoro

So much is happening in the world of mediation in our
jurisdiction. So fast-paced are these developments that it might
take a while for the populace to fully appreciate and internalize
their import.

In this column, we have in the last couple of years explained
and made the case for the use of Alternative Dispute Resolution
methods in commercial and non-commercial civil disputes. In
carrying out this objective we have more often than not zeroed in
on the mediation process which is widely recognized as the flagship
of ADR mechanisms.

What perhaps we have never highlighted is the use of mediation
in the criminal justice system. The reason for this was simple; our
laws prior to now made no provisions for such. However, as I write
this, the much that has taken place in the last few weeks has given
mediation an inroad into our criminal justice delivery.

You are perhaps abreast of the fact that Nigeria no longer runs
a Prison Service system. What we now have in its place is the
Nigerian Correctional Service, which will provide custodial and
non-custodial services.

If the above sounds Greek to you, it simply means that not
everyone who henceforth commits an offence will be liable to be
sent to jail. Some offenders will be punished by other means other
than incarceration. These will include Community Service,
Probation, Parole, Restorative Justice and any other non-custodial
measures assigned to the Correctional Service by a court of
competent jurisdiction.

Aside significantly reducing the numbers of persons who may
henceforth be incarcerated for offences, the new law also
introduces mediation services which will enable victims of crime to
enjoy restitution as well as bring closure to their trauma.

The point to note here is that every act of crime impacts three
parties; these are the victims, the society in which they live and
the State whose duty it is to protect the lives and properties of
its citizens. Contemporary thinking is that all of these parties
should play an active role in criminal justice processing with a
view to attaining a more cohesive and crime-free society.

Section 43 of the Nigerian Correctional Service Act 2019
provides that the Controller-General shall provide the platform for
restorative justice measures including victim-offender mediation;
family group conferencing; community mediation and any other
mediation activities involving victims, offenders and where
applicable, community representatives.

The Act further states that restorative justice services may
occur at pre-trial stage; at trial stage; during imprisonment; and
post imprisonment victim-offender dialogue.

These provisions which capture the new thinking in Nigeria’s
criminal justice administration simply underscores the fact that
aside the decongestion of courts through non-custodial measures of
sanction, society and victims of crimes must come to closure and
healing through victim-offender mediation which provides an
opportunity for restorative justice

Prior to now, when a criminal act is committed, the Police are
called in to arrest and prosecute the offender. At trial, the case
is usually between the State and the offender or the Commissioner
of Police against the offender. In all of the actions that follow,
little or no concerns are raised about the emotional and social
impact of the crime – issues that matter more to those who suffer
the trauma of the unpleasant occurrences.

What a growing number of jurisdictions have introduced is
restorative justice. According to Wikipedia, a restorative justice
program aims to get offenders to take responsibility for their
actions, to understand the harm they have caused, to give them an
opportunity to redeem themselves and to discourage them from
causing further harm. For victims, its goal is to give them an
active role in the process and to reduce feelings of anxiety and
powerlessness.

Restorative justice is processed by professional mediators who
assist victims and offenders to come to terms with the facts of the
unpleasant event. The mediators assist parties to come to a closure
by bringing the offenders face to face with their victims to
explain their actions, offer apologies and or restitution for
victim losses. The process offers victims the opportunity to
narrate in their own words the emotional and physical torture they
may have suffered when the crime was committed.

According to the Victim-Offenders Mediation Association,
“victim-offender mediation involves a meeting between the victim
and offender facilitated by a trained mediator. With the assistance
of the mediator, the victim and offender begin to resolve the
conflict and to construct their own approach to achieving justice
in the face of their particular crime. Both are given the
opportunity to express their feelings and perceptions of the
offence (which often dispels misconceptions they may have had of
one another before entering mediation). The meetings conclude with
an attempt to reach agreement on steps the offender will take to
repair the harm suffered by the victim and in other ways to “make
things right”.

Participation by the victim is voluntary. The offender’s
participation is usually characterized as voluntary as well,
although it should be recognized that offenders may “volunteer” in
order to avoid more onerous outcomes that would otherwise be
imposed…’’

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