By: Hon (Barr) Ipoola Aderemi Binuyo LLB, LLM, M. PHILL (IFE), B.L, FCIArb
INTRODUCTION
All the various methods of ADR such as Arbitration, Mediation, conciliation, negotiation and so on have over the years been used in resolving disputes especially in civil matters. The combination of all the methods of dispute resolution has garnered widespread support from those who favour the adoption of ADR in resolving disputes as against customary litigation.
Arbitration as a method of dispute resolution has become popular in the civil, commercial, family, divorce and contractual legal parlance. However, in criminal cases, it has remained a locust that is unworthy of getting close to. It is widely known that arbitration and criminal law appear to live in two distant planets; on distinct paths that seem unlikely to cross[1]. Thus, to an extent, arbitration could be introduced in some offences that are victim based in order to compensate the victim, while at the same time ensuring that the offender does not go unpunished. While it has been argued by various scholars and authors on the fact that arbitration and criminal matter cannot coexist, it is still worthy of note that fusing arbitration into criminal matter is still a possibility in as much as state legislation could be enacted to permit it; especially when it is viewed from a victim based perspective.
More often than, we have seen a plethora of instances were offenders get away with their criminal acts by keeping whatever proceeds of crime they must have accumulated while the system often neglects the need to redress the emotional wounds suffered by the victim.
THE CONCEPT OF ARBITRATION
Arbitration as a concept is a form or method of dispute resolution which encourages private judicial determination of a dispute, by an independent third party.[2] The origin of arbitration could be traced back to the ancient Greece where early forms of arbitration were used to solve disputes relating to independence or sovereignty between states.
Arbitration is an extra-judicial mechanism through which conflicts can be solved. It is an adversarial process which is governed by the principle of party autonomy. By implication, it is the parties to a conflict who determine whether they want their disputes to be solved through arbitration. As such, arbitration derives its authority solely from the parties.
The binding nature of arbitral awards and its conclusivity makes it more acceptable. However, an unsuccessful party can challenge the award where a national arbitration legislation allows the right to appeal.
Unlike customary litigation, arbitration is more advantageous in the sense that it allows the parties to choose a technical person as arbitrator where the dispute is technical in nature so that evidence will be more readily understood. The efficiency of arbitration makes it more preferable to the customary litigation. Also, convenience, flexibility and finality of arbitration makes it more effective than customary litigation where parties have to wait for years to even get a hearing date.
The maxim “Justice delayed is justice denied” means that if legal redress is available for a party that has suffered some injury, but is not forthcoming in timely fashion, it is effectively the same as having no redress at all.[3]
The emergence of arbitration over the past years has given much needed reprieve to our understaffed and pressured judicial system. Cases that ordinarily would take over 6-7 years are now being resolved in months and the need to appeal has been eradicated in arbitration except in cases where there is an element of fraud.
NEED FOR ARBITRATION IN CRIMINAL MATTER
The argument for the inclusion of arbitration in criminal matter is contextual to the victims and society in transitional contexts.
From the victim perspective, it proposes a reorientation of the victim-oriented theories of punishment towards consequentialism and the adoption of a wider concept of justice.[4] As to society, it proposes positive general prevention. Thus, both victim & society perspective is that the victims’ interest should be weighed up against other social aims and that a flexible approach to the prosecution and/or punishment of offenders should be permitted, in the search for the best optimum means possible to guarantee the ultimate aim of the maintenance of social order.[5]
The argument for a more flexible system of criminal law has received prominence in international criminal law and human rights courts. The latter, especially the Inter-American Courts on Human Rights (IACtHR), has consolidated victims’ right to truth, justice, reparation and non-petition.[6]
Without turning a blind-eye to the interest of the state in ensuring punishment of an offender, paying attention to victims and their rights is a condition sine qua non for the resolution of the conflict between both interests. If the victims’ interest is to be considered, state punishment can no longer be perceived as an imaginary act, if conferring by the victim; rather, it is the outcome of the will of the democratic legislators.
In its real sense, the effects of criminal trials are unique to each victim, depending on a wide variety of circumstances. As such, a victim should be given the opportunity of which procedure he/she perceive to do justice for any suffering as a result of the acts rather than the conventional prosecution by the state. This is because when one wishes to show sympathy towards and solidarity with an individual, their acts should be better directed towards the person they wish to comfort and not towards someone else. Punishment as the imposition of an evil goes beyond solidarity and cannot be explained by it.
The Nigerian criminal justice system is purely retributive, which places emphasis on the offender and punishment rather than rehabilitation and reintegration. The effect of this is that the victims of crimes who suffer the direct impact of the offences are therefore usually not offered any restitution.
Although the rationale for the enactment of the Nigerian Correctional Services Act 2019 is centered on “conducting risk and needs assessment aimed at developing appropriate correctional treatment methods for reformation, rehabilitation and reintegration” and “empowering inmates through the deployment of educational and vocational skills training programmes, and facilitating incentives and income generation through custodial centres, farms and industries”, yet there is need to compensate victims of crime rather than just focusing on the offender.
Justice delayed is justice denied and legal redress not obtained in a timely fashion is effectively the same as having no redress at all. This has overtime become the hallmark of our criminal justice system and so a victim is always reluctant to lodge complaint or even initiate the institution of an action in court because of the long wait for justice.
There is a need to allow counsel holding a watching brief on behalf of the victim or complainant to provide support to the prosecution by giving them audience to state their observation. Lack of audience for victim’s counsel shows lack of consideration for the pain of the victim which could be let out through their counsel if allowed to actively participate in the trial or encouraging arbitration rather than just attending court to observe the proceedings.
There are several offences such as simple offences and misdemeanour which could accommodate arbitration especially those committed against persons whose victim is willing to quick dispensation of justice. The offences that fall in this category should be considered for arbitration instead of prolonged prosecution. This would reduce the workload of the courts and allow it to function in resolving other cases. For example, where an accused confesses or is caught with stolen goods or property, criminal arbitration should permit returning same back to the victim and grant offender less punishment or be kept at correctional centre. Also, the family of the offender might agree to return stolen goods and as such, criminal arbitration should be allowed to take charge instead of going to court and waste time.
With the introduction of plea bargaining and compounding into the Administration of Criminal Justice Act (ACJA), the practicability of arbitration in criminal matter seems to be high. This is because arbitration will combat the problems such as rigidity in our criminal justice system, awaiting trial problems and delay in the disposal of cases.
The need for the adoption of arbitration in criminal matters have international context as seen in The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power[7] provides that “informal mechanism for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.” Additionally, the International Covenant on Economic, Social and Cultural Rights provides for the establishment of an adhoc conciliation commission to reach an amicable resolution on matters with respect to human rights.
RECOMMENDATIONS AND CONCLUSION
Without forgetting the fact that arbitration cannot be wholly applied in the resolution of all criminal matter, it is suggested that legislation towards resolution of simple offences and misdemeanours should be enacted. This legislation should prescribe the procedure for referring a criminal matter for arbitration with the consideration of the rights and duties of both parties and the state, with the prescription of the expected outcome from such arbitration.
If victim compensation is to be an integral part of our criminal justice system as against mere punishment of the offender, arbitration should be introduced for amicable resolution and restoring sanity into the society.
Furthermore, since the government has been clamouring for the decongestion of our prisons, there is need for the enactment or repeal of our criminal laws to accommodate arbitration; if decongestion is to be achieved.
The introduction of arbitration in criminal matters should be a welcome development in the administration of criminal justice in Nigeria. Arbitration has proven to be a viable and effective avenue in decongesting the courts and resolving disputes in an expeditious manner. Its success in civil matters and acceptance is a testimony to its viability and flexibility.
Consequently, with the introduction of arbitration, punishment for offences will not be limited to custodial sentence but would also accommodate payment of fines and forfeiture of proceeds of crime. It will encourage victim compensation and will increase revenue for government through payment of fines.
REFERENCES
- Nishant Nigam, (2019) ‘Why Arbitration as a dispute mechanism?’
- Elena Maculan & Alicila Gil, (2020) The Rationale and purposes of criminal law and punishment in transitional contexts, Oxford Journal of Legal Studies, Vol 40 No1, pp 132
- Ezequiel Malarino, (2012) ‘Judicial Activism, Punitivism and Supranationalisation: Illiberal and Antidemocratic Tendencies’ 12 International Criminal Law Review 66
- General Assembly resolution 40/34 of 29th November, 1985
[1] Nishant Nigam, (2019) ‘Why Arbitration as a dispute mechanism?’ [online] www.lawyered.in
[2] Ibid
[3] Ibid
[4] Elena Maculan & Alicila Gil, (2020) The Rationale and purposes of criminal law and punishment in transitional contexts, Oxford Journal of Legal Studies, Vol 40 No1, pp 132
[5] ibid
[6] Ezequiel Malarino, (2012) ‘Judicial Activism, Punitivism and Supranationalisation: Illiberal and Antidemocratic Tendencies’ 12 International Criminal Law Review 66
[7] General Assembly resolution 40/34 of 29th November, 1985
