DISCUSSION PAPER ON ‘ACHIEVING JUSTICE FOR VICTIMS OF
CRIMES – THE IMPARATIVES OF RESTORATIVE JUSTICE’ By Chino Edmund
Obiagwu SAN
I want to commend Dr Babajide Martins of the Directorate of
Public Prosecutions, Lagos State Ministry of Justice for the
incisive and highly explorative paper on the topic of using
restorative justice to achieve justice for victims of crime.
I have four comments to make in discussing the paper.
The first is the focus of restorative justice, and indeed, most
non-litigatory methods of resolving disputes, on the victims of
crimes. The second issue is the importance of provisions of ACJL
and ACJA for compensation and restitution in criminal proceedings.
The third is the danger of placing limitation on the use of
restorative justice or other ADR tools in criminal justice
proceedings to certain crimes, especially violent and sex crimes
and crimes against children. The fourth issue is need to extent
restorative justice beyond conviction and sentence.
Victims and restorative justice
The primary determinants of justice are the interest of the
victims, the society and the offender. But the interest of the
victims should be of paramount concern.
It seems that the criminal justice system, before ACJA regime,
even in ACJA operations, play emphasis on the protection of the
interest of the offender, then the community, and very little
attention to the victims. The victim is merely a witness for the
prosecution, and the case can even be dispensed with or concluded
without the victim’s participation. To this extent, most victims
feel distanced from the criminal proceedings. Decisions such as the
prosecutorial decisions to prosecute or not the prosecute, which
witness to use or not to use, the line of charge to prefer, and the
selection of evidence, are most times to the exclusion of the
victim of crime and his or her interest. Crimes, except in few
instances of crimes against state or society such as treason, are
violations against the individual, directly or indirectly. To the
extent, the primacy of the individual victim in the process is
important.
The concept of restorative justice, much like ADR, is rooted in
the notion that the interest of the victims is primary concern to
the process, as well as those of the community and even the
offender. Punitive actions do not always best serve those
interests.[1] As an illustration, if someone steals money from
you and the person goes to jail, you still may not necessarily get
your money back nor may you gain any security assurances that the
person will not commit another crime against you once he is freed.
In the case of the US energy giant Enron, many employees lost their
life savings, and most will not get that money returned, even
though the executive directors of the company responsible for the
scan were jailed.
Increasingly, rates of recidivism are high, and jailed offenders
tend to become repeat offenders, such that the jails are producing
harder criminals.
Let me further illustrate with another case. On 21 November
2006, it was reported that a Nigerian professor, Festus Oguhebe,
spread pepper on one of his sons as a form of punishment, and he
was charged for child abuse, convicted and sentenced to five years
imprisonment by a United State court. He jail term was however
suspended with three years on account of his plea admission and
bargain in respect of one count of child abuse.
Prof Oguhebe was accused of abusing his 11 year old son by
placing him in a bathtub, then putting hot pepper juice in his
eyes, on his penis and buttocks, and also by tying his hands behind
his back and covering his body with ants, according to court
records. He was also accused of abusing his son by whipping and
striking the child in such a manner as to cause serious bodily
injury. Oguhebe who has six children with his ex wife wiped tears
when his children spoke in court of their love and respect for him,
urging the court to spare their father jail term. ‘Give him
counseling, extensive counseling, that would be better than jail,
said Ann Oguhebe. ‘I know he went overboard in his punishment, but
he loves us, if he is in jail, that would totally mess me up so
much’ said his 16 year old daughter, who would be graduating from
high school that year. She told the court ‘I want my dad to be
there when I graduate’. His ex wife, Mary Oguhebe, said what her
former husband did was wrong but he is no danger to society and
didn’t need to be locked up in jail. Yet he was sentenced to
jail.
The basis of restorative justice is the concept that humans are
capable of reform at any stage of their deviance. Offenders should
have the chance to make amends for their crimes to victims and take
responsibility for their offences. If the offender makes amends,
then he should be reintegrated into the society.
In order to better place victims in center of criminal justice,
restorative measures should encourage that victims should have some
say in the response to the crime they have suffered, generating
options for the offence to make amends and pointing the part
towards forgiveness and closure. The criminal justice system should
encourage the victims to achieve closure, and if jailing the
offender will not achieve closure for the victims, it is preferred
to pursue more restorative options.
By allowing victim-offender- mediation, in which the victims
confronts directly the individual who perpetrate crime against
them, allows the release of anger, fear, pain and suffering
inflicted by the offender, knowing the truth about the offence and
possible motivations as the case may be, and perhaps, an apology
from the offender to the victim may go a long way to assuaging the
pain and moving the victims towards closure.
There are 5 stages identified as model for effective restorative
process. The case explorative stages in which
investigations and prosecutorial examinations are done to determine
if crime has been committed. The encounter stage in which
those involved meet to discuss the crimes and its impact, and
develop options for restoring the victims and the society. The
third state is where amend are made, usually, to drive the
victims to achieve closure. Fourth is
reintegration of the offender into the community and
securing assurances of his true and genuine remorse and commitment
not to repeat the crimes or any crimes. And oversight, in
which the offender is supervised and observed to monitor
implementation of the reintegration contract he has entered with
the society. Thus, Restorative justice is hinged on reconciliation,
restitution, reintegration and restoration.
Under plea bargain provisions, the involvement of victims of the
offence in the bargain is not mandatory, as section 76(2) and (3)
of ACJL Lagos provides that
‘(2) The prosecutor may only enter into an agreement
contemplated in subsection (1) of this section (a) after
consultation with the Police Officer responsible for the
investigation of the case and if reasonably
feasible, the victim, (b) with due regard to the
nature of and circumstances relating to the offence, the defendant
and the interest of the community.
(3) The prosecutor, if reasonably
feasible, shall afford the complainant or his
representative the opportunity to make representations to the
prosecutor regarding: (a) the content of the agreement; and (b) the
inclusion in the agreement of a compensation or restitutive
order.
The ACJA makes an improvement on these provisions by requiring
more inclusiveness of the victims in the process.
A second issue in my discussion relates to the provisions under
ACJL and ACJA for restitution and compensation of victims of
crimes, especially in property crimes. In addition to section 341
of ACJL already mentioned, there are provisions of sections 294,
295, 296, and 297 of ACJL, equivalent to sections 336, 340, 341,
and 342 of ACJA. Though these compensatory remedies are down the
line at the close of the case, it gives the court wide latitude to
pay attention to the loss suffered by victims and to restore to any
victim or innocent person adequate restitutive measures in order to
reduce the consequences of the offence on others.
It follows that the prosecution should be mindful of possibility
of restorative measures in cases in which the plea has not been
successfully bargained, so that evidence can be introduced on the
restitutve interests of the victims of the crime or of any other
person.
A person who is subject to benefit from any possible order under
the provisions of sections 295, 296 and 297 of ACJL may apply to
court even in criminal proceedings for those purposes. These
sections contained in Part 21 of ACJL provides as follows:
PART 21
SEIZURE, RESTITUTION, FORFEITURE AND DISPOSITION OF
PROPERTY
Order for disposal of property with
respect to which offence is committed
290.—(1) During or at the conclusion of any
trial, the Court may make such order as it thinks fit for the
disposal whether by way of forfeiture, confiscation or otherwise of
any movable or immovable property produced before it with respect
to which any offence appears to have been committed or which has
been used for the commission of any offence and in case of any
immovable property, the production of title document, deed,
certificate of occupancy or receipt of purchase of such property
shall be deemed as production of the property itself before the
Court for the purpose of the exercise of the power of forfeiture,
confiscation or otherwise conferred by this Section.
(2) Where the Court orders the forfeiture or
confiscation of any property as provided in subsection (1) but does
not make an order for its destruction or for its delivery to any
person, the Court may direct that the property be kept or sold and
that the same, if sold, the proceeds shall be held as it directs
until some person establishes to the Court’s satisfaction a right
to it. If no person established such a right within six months from
the date of forfeiture or confiscation of such property, the
proceeds shall be paid into and form part of the general
revenue.
(3) The power conferred by subsections (1) and (2)
upon the Court shall include the power to make an order for the
forfeiture or confiscation or for the destruction or for the
delivery to any person of such property, but shall be exercised
subject to any special provisions regarding forfeiture,
confiscation, destruction, detention or delivery contained in the
written law under which the conviction was had or in any other
written law applicable to the case.
(4) When an order is made under this Section in a case in which
an appeal lies, such order shall not, except when the property is
livestock or is subject to speedy and natural decay, be carried out
until the period allowed for presenting such appeal had passed or
when such appeal is entered until the disposal of such appeal.
Seizure of things intended to be used
in commission of offence
- The Court may order the seizure of any instruments, materials
or things which there is reason to believe are provided or
prepared, or being prepared, with a view to the offence triable by
the Court and may direct the same to be forfeited, confiscated,
held or otherwise dealt with in the same manner as property under
Section 294.
Destruction of seditious and prohibited
publications
292.—(1) On a conviction under the Criminal Law
applicable in the State for offences relating to seditious
publication, the Court may order the confiscation and destruction
of all the copies of the thing in respect of which publications the
conviction was had and which are in the custody of the Court and
also all those which remain in the possession or power of the
person convicted.
(2) The Court shall in like manner on a conviction
for an offence under the Criminal Law applicable in the State for
exposing for sale things unfit for food or drink, order the food or
drink in respect of which the conviction was had and also all other
unfit or adulterated food or drink which remain in the possession
or power of the person convicted to be destroyed.
Search warrant shall be used to search
for things subject to Sections 291 and 292
- Where a Magistrate is satisfied by information on oath in
writing that there is reasonable ground for believing that there is
in the State in any building, ship, carriage, motor vehicle,
aircraft, receptacle or place anything in respect of which an order
shall be made under Section 291, or 292, such Magistrate may issue
a search warrant to search for any such thing and if such thing be
found, the same shall be brought before any Court and dealt with as
the Court may deem proper.
Restoration of possession of immovable
property
294.—(1) Whenever a person is convicted of
an offence involving the use of force and it appears to the Court
that by such force, any person has been dispossessed of any
immovable property, the Court may, if it deems fit, order the
possession of same to be restored to such person.
(2) No such order shall prejudice any right or
interest to or in such immovable property which any person,
including the person convicted, may be able to establish in a civil
suit.
Payment to innocent person of money
found on defendant
- When any person is convicted of any offence which includes or
amounts to stealing or receiving stolen property and it is proved
that any other person has bought the stolen property from him
without knowing or having reason to believe that the same was
stolen, and that any money has on the arrest of the convicted
person been taken out of his possession, the Court may, on the
application of such purchaser and on the restitution of the stolen
property to the person entitled to the possession, order that out
of such money a sum not exceeding the price paid by such purchaser
shall be delivered to him.
Restitution and disposition of property
found on person arrested
- Where, on the arrest of a person charged with an offence, any
property, other than that used in the commission of the offence, is
taken from him, the Court before which he is charged may order
–
(a) that the property or
a part of it be restored to the person who appears to the Court to
be entitled to it, and, if he be the person charged, that it be
restored either to him or to such other person as he may direct;
or
(b) that the property or
a part of it be applied to the payment of any costs or compensation
directed to be paid by the person charged.
Restitution of property
stolen
297.—(1) Where any person is convicted of
having stolen or having received stolen property, the Court
convicting him may order that such property or a part of it be
restored to the person who appears to be the owner, either on
payment or without payment of any sum named in such order by the
owner to the person in possession of such property or a part of
it.
(2) This Section shall not apply to—
(a) any valuable
security which has been bona fide paid or discharged by
any person liable to pay or discharge the same; or
(b) any negotiable
instrument which shall have been bona fide received by
transfer or delivery by any person for a just and valuable
consideration without notice or without any reasonable cause to
suspect that it had been stolen.
My third comment relates to limiting cases in which restorative
justice may be applied to certain offences by the Practice
Direction of Restorative Justice. These offences to which
restorative justice measures may not apply are capital offences
(murder, armed robbery, treason) sexual offences (rape, defilement,
sexual assault), kidnapping, domestic violence, corruption cases
and financial crimes, terrorism.
Not only that the listing is vague, such as domestic violence,
as there is no such offence as such even under the ‘Domestic
Violence Law of Lagos State 2010’, the wide range of excluded
charges defeats the purpose of restorative justice.
Furthermore, it seems the practice direction is introducing
limitations that are not in statute. Section 15 (2) of Criminal Law
of Lagos State 2015 makes wide provision for ‘other restorative
measures’ and contains no such restriction. Section 76 of ACJL that
provides for plea bargain does not limit bargains to any class of
offences. Many other ACJLs did so to some degree, e.g. the ACJL of
Anambra State provides in section 167(4) that
‘The provisions of this section shall not apply to persons – (a)
charged with capital offences or any offence involving the use of
violence (b) persons who had, in the last ten years, been convicted
and sentenced for any such similar offence or any offence involving
grievous violence or sexual assault.’
The legislative intentions of ACJL Lagos and the 2015 Criminal
Law are that any offence can be subject of plea negotiation or
restorative measures. A practice direction will not lawfully alter
the provisions of a statute, especially where the direction has the
effect of limiting the exercise of duties or benefits conferred by
statute.
On utilitarian side, it amounts to undue generalization to
exclude a class of offences from restorative justice, because each
case has its own peculiar circumstances or character. A charge is
what it is: a charge. It is still an allegation by the prosecution.
So there is constitutional right to presumption of innocence. To
shut out a possibility of discussing restorative measures in such
class of offence is to prejudge the circumstances. There are
instances in which murder charges have been and should be plea
bargained, or restorative measures applied. As mentioned earlier,
the key interests of the victims of the offence require to be
considered, in order to achieve closure. A recent case of
People of Lagos State v Janet James was successfully plea
bargained, though it was a case of murder. The defendant had used a
wooden staff to beat her step brother living with her at his lower
shoulder, leading to his death. After nearly 10 years of trials and
de novo trials, the prosecution and defence agreed to plea
bargain the case, moreso because the mother of the defendant and
the deceased had been so distressed, as they were her only
children. Though the charge read ‘murder’ the peculiar
circumstances justify the need to bargain the charge. So also the
cases involving domestic violence obviously require less or no
punitive measures where there are genuine needs for
restoration.
The final point of discussion is that post sentences processes
could benefit from restorative measures. The intendment of the
recent Correctional Services Act is to make non-custodial
and non-punitive penal measures the center of criminal justice
administration. Even after conviction and sentence, a victim
offender restorative mediation process can still take place,
especially where there are emotional desires for repentance,
remorse, apology, and restitution on the part of the offender, and
exercise of the right to the truth by the victim. The ambits of
restorative justice should not be limited in order to take full
benefits of its processes.
Chino Edmund Obiagwu SAN, FICMC
[1] UNODC Abuja: Training manual on Alternative
Dispute Resolution and Restorative Justice, 2007.