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. 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:
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