THE ROLE OF ADR IN THE KADUNA STATE ADMISTRATION OF CRIMINAL JUSTICE SYSTEM

Weekly Law by NICArb

His Worship Dorcas Levy Daniel (Mrs), MCArb

INTRODUCTION

Alternative Dispute Resolution according to Black’s Law Dictionary[1] is a procedure for settling disputes by means other than litigation such as Arbitration, Mediation, Conciliation, Negotiation and through other ADR mechanisms.

Alternative Dispute Resolution in the Criminal Justice System means the bringing together of the victim in an offence and the offender to settle criminal cases without the need to proceed to trial.

The use of ADR mechanisms in Criminal Justice System is associated with restorative justice which shifts the idea of violations against states and punishment towards reparation and inculcating in the offender a sense of Responsibility towards the victims.

The proponent is Nils Christie, a professor of Criminology from Norway and the idea is that a criminal offence represents not just a violation against the state but it is also a community conflict which requires resolution between individuals.[2]

COMPONENTS OF CRIMINAL JUSTICE

  1. Law enforcement E.g. police, prosecutors etc. (In Kaduna State includes Civil Defence and KASTELA).
  2. Court system (i.e. Judiciary in Kaduna State) the Judiciary has three sections namely the High Court, Customary Court of Appeal and Sharia Court of Appeal; there is also the Kaduna Multi-door Court House which sole purpose is ADR[3]
  3. The correctional system i.e. Borstal Institution, prisons, and community homes in Kaduna State (shelters etc).

The Criminal Justice System is a network of government and private agencies intended to manage accused persons as well as victims.

The goals of the Criminal Justice System are:

  1. Retribution
  2. Deterrence
  3. Rehabilitation
  4. Restoration
  5. Restitution

TYPES OF ADR IN THE CRIMINAL JUSTICE SYSTEM OF KADUNA STATE

  1. Victim Offender Mediation Process

This provides interested victims of minor assaults and property crimes an opportunity to meet their offenders in a structured and safe setting. The goal is to hold the offenders accountable for their actions.

In Kaduna State, the various court sections by their laws provide for ADR by encouraging amicable resolution of disputes between parties.[4]

The Multy-Door Court House applies this process in settling criminal matters in Kaduna State but for minor offences. The Kaduna Administration of Criminal Justice Law 2017[5] provides for the use of ADR in criminal conflict.

  • Family Group Conferencing

This is a mediated formal meeting between family members and other officials such as social workers and police with regard to care, protection or criminal offence of a child or Adolescents.

Section 144(3)[6] of the child welfare and protection law of Kaduna State 2018 provides that:

“The court shall in any matter relating to or affecting a child or a family and at all stages of any proceedings before it”.

  1. Be guided by the principles of conciliation of the parties involved or likely to be affected by the result of the proceedings including:
  2. The child
  3. The parents or guardian of the child and
  4. Any other person having parental or other responsibility for the child.
  5. Encourage and facilitate the settlement of the matter before it in an amicably manner which includes the use of any ADR mechanism.
  • Victim Offender Panels

The essence of this is to provide a constructive atmosphere that allows victims express their grievances among others suffering from effects of crimes such as communal conflicts etc. Eg Kaduna State Zangon Kataf Reconciliation Committee 1995.

  • Victim Assistance Programmes

This provides services to victims as they recover from the crime and proceed through recovery process such as counseling, provision of accommodations, and safe places/Shelters or homes[7] such as, Children Homes, Emergency Protection Centers, Special Children Centers are all provided for in the Child Welfare and Protection Law 2018.

Compensation has been provided for by the Kaduna State Penal Code[8] and the Administration of Criminal Justice Law 2017.[9]

Restitution is also provided for under of the ACJL[10] of Kaduna State for victims of offences wherein the court may order for restitution or compensation for the loss or destruction of victim’s property.

  • Community Crime Prevention Programmes

These are interventions designed to bring reform to the social conditions that influence, encourage offending or committing crimes in residential Areas E.g. monitoring of community service,[11] education, surveillance (such as sanitation, cutting grass, washing drainages).

  • Community service is provided for under Section 457 of the ACJL 2017 of Kaduna State and the essence in rehabilitation and making the offender do productive work in the community.
  • Section 457(3)(d)[12] provides for counseling offenders with a view to bring about their reformation.

Section 457(4)[13] – provides for the types of community service which includes: Environmental sanitation cutting grass, washing drainages, clearing environment, washing public places, assisting in production of agricultural produce, construction, mining any other service that would have a beneficial or reformative effect on character of the offender.

  • Plea Bargain

Plea Bargain[14] is an arrangement between the prosecutor and defendant whereby the defendant pleads guilty to the offence, or, to a lesser charge for a more lenient sentence or an agreement to drop other charges. This is currently the most widely used and accepted ADR mechanism in the criminal justice system and it is usually used for financial crimes. The ACJL[15] provides for plea bargain, guidelines in Kaduna State where the prosecution and defendant work out a mutually acceptable disposition of the case with the courts approval as held by the court in Cecelia Ibru’s case.

  • Compounding of offences

This is a process whereby the offence committed by a person who has injured another, the offender agrees with the victim that he would not prosecute him on the condition that the offender makes reparation or gives compensation or makes amends.

The ACJL 2017[16] provides for compounding of offences before trial commences; after trial commences; and after trial is concluded, with leave of the appellate court.

The elements of compounding an offence are:

  • an agreement not to prosecute
  • knowledge and actual commission of the crime
  • admission of commission of the crime
  • receipt of some consideration.

Offences that are compoundable under the ACJL are:

  • Causing harm, Assault, Mischief, criminal trespass House trespass, criminal Breach of contract of service Adultery Defarmation, intimidation insults, – without leave of court
  • Grievous harm, wrongful restraint, compulsory labour, harm not grievous by dangerous weapon, mischief in relation to water supply (damage to private person) uttering words or gestures intending to insult the modesty of a woman – with leave of court.
  1. Conciliation

The Child Welfare and Protection Law of Kaduna State 2018[17] provides for conciliation in any matter and all stages of proceedings before the court where a child is involved.

  1. Rehabilitation

A process of restoring someone to health or a normal life through training, therapy for addiction or illnesses particularly also for child offenders.

ADR in criminal justice system in Kaduna State applies to minor offences mostly and the process applies before, within or after the trial procedure.

ADVANTAGES OF ADR IN THE CRIMINAL JUSTICE SYSTEM

  1. Prompt and certain disposition of the case[18]
  2. The need to avoid delay in disposition of cases pending in court[19]
  3. Expenses of trial and Appeal[20]
  4. ADR in criminal justice settles disputes between persons amicably
  5. ADR encourages involvement of individuals against the involvement state where the complainant or victim is denied full participation.
  6. Restoration of cordial relations.
  7. Compensation, Restitution is made. In litigation compensation is at the discretion of the court and may be grossly inadequate.
  8. Inculcates sense of responsibility on the offender.
  9. Gives room for rehabilitation and reformation as well as reintegration of the offender.
  10. Addresses mental, physical, psychological and emotional trauma.
  11. Mediation/ADR removes domestic cases from public domain and   scrutiny i.e court of public opinion.
  12. Protects victims of crime child offenders from the public

LIMITATIONS OF ADR IN THE CRIMINAL JUSTICE SYSTEM

  1. ADR in Criminal Justice in Kaduna State applies to minor offences only.
  2. There are no adequate laws, rules or guiding principles covering the use of ADR in Criminal matters.
  3. The lack of wide acceptability and endorsement by the law, lawyers, law enforcement agents. (legal community)
  4. Mediators lack training in the Area of criminal violence.
  5. Limits power control as there is no equality in bargaining power.
  6. Confidentiality in mediation can result to perpetration of more crimes.
  7. Unenforceability of mediated agreements.
  8. Corruption can result in the pillars of criminal justice system i.e law enforcement, court system, correctional system.
  9. Rigidity can result in mediation which hitherto has been flexible.

CONCLUSION

ADR has been part of the Criminal Justice System in Kaduna State.

There is need for training Arbitrators and mediators in the aspect of criminal justice law There is need to entrench ADR in the criminal justice system by providing rules, regulations and procedure for application of ADR in criminal justice. The latitude of offences that can be settled by ADR should be widened to include more offences.

The enforceability of mediated agreements should be given legal backing. Mr. Tunde Folarin & Anor V Comrade Sam A. Idowu[21]  where it was held that a party shall not be allowed to blow hot and cold in an agreement he had tacitly endorsed and subscribed to as this will be contrary to public policy and unacceptable.

ADR in criminal justice has indeed come to stay in the Administration of Criminal Justice System. Reluctance must give way to acceptance by the legal community.

[1] Black’s Law Dictionary 9th Edition

[2] Mainstreaming ADR in Nigerians Criminal Justice System Chukunweike A. Ogbuabor, Edith O Nwosu, Edwin Obimma Ezeke, European Journal of Social Services Vol. 45, No 1 November, 2014 page 32-43, http://www.europeanjournalofsocialsciences.com

[3] Kaduna State Multi-Door Court House – Kaduna State Alternative Dispute Resolution Adoption and Application Law No 4 of 2013.  

[4] Amadi G.O.S. (2007) Using Arbitration and ADR in resolving criminal cases in Africa. Breaking new grounds: paper presented at workshop on Role of Arbitration and ADR in poverty alleviation and Access to justice for the poor in Africa-June 26-28 2007 @ Hilton Hotel, Narobi Kenya.

[5] Administration of criminal Justice law 2018 of Kaduna State

[6] The child welfare and protection law 2018 of Kaduna State

[7] Section 448 ACJL 2018

[8] Section 39 Penal code 2017

[9] Section 330-334,335-336 ACJL 2017

[10] Section 332 ACJL 2017

[11] Section 457(5) ACJL2017

[12] Ibid

[13] ibid

[14] Section 282 ACJL2017

[15] Ibid

[16] Section 485(1-9)

[17] Section 144(3) CWPL2018

[18] Section 282(5)(b) (iv)ACJL 2017

[19] Section 282(5)(b)(vii) ACJL 2017

[20] Section 282(5)(b)(viii)2017

[21](2013) LPELR 22123 SC