By Hon. Oluwanuga Sola Ephraim, mni, C.Arb (Chairman, CIArb Abuja Chapter)
A Paper Presented At The ADR And Criminal Justice System Workshop
TOPIC: PROS AND CONS OF INTEGRATING ADR INTO THE CRIMINAL
JUSTICE SYSTEM; THE WAY FORWARD
DATE: NOVEMBER 2, 2021
TIME: 11:00AM
VENUE: ABUJA TRADE AND CONVENTION CENTRE, KM 8, ARIPORT ROAD,
ABUJA
PROTOCOL
Introduction
The fundamental role of the Criminal Justice System in the Nigerian society
cannot be overemphasized. Over the years, the Nigerian Criminal Justice
System has significantly contributed to the maintenance of law, order and
peace in the society. It is regarded as the foundation for equilibrium in the
country. According to the Black’s Law Dictionary;
‘Criminal Justice System can be defined as the collective institutions
through which an accused offender passes until the accusations have
been disposed of or the assessed punishment concluded. The system
typically has three components: law enforcement which includes;
police, sheriffs, marshals], the judicial process [judges, prosecutors,
defence lawyers], and corrections [prison officials, probation officers,
parole officers]’.
Thus, the Criminal Justice System in every society comprises of three major
sectors namely: the law enforcement agencies, the judicial body and the
correctional facilities. These three agencies work hand-in-hand in order to
maintain and achieve equality and order within the society. In Nigeria, the
judiciary, the police, the prison service and the legal practitioners all play a
key role towards the effective administration of Justice in the society.
It is pertinent to note at this point that the Criminal Justice System in
Nigeria derives its authority from the grundnorm, which is the Constitution
of the Federal Republic of Nigeria, 1999 (as amended). By virtue of section 6
of the CFRN, 1999 (as amended), the judicial arm of Government is aptly
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provided for, and as we are all aware, the judicial arm of Government plays
a foremost role in the administration of Justice in Nigeria. In addition to the
CFRN, there are a plethora of substantive and procedural laws that have
been put in place to ensure that Justice is properly administered. The
substantive laws include: the Criminal Code Act, which is applicable in the
Southern States, and the Penal Code Act which is applicable in the Northern
States. Furthermore, the procedural laws include: the Criminal Procedure
Act which is applicable to the Southern States with the exception of Lagos
State, the Criminal Procedure Code which is applicable in the Northern
States, the Administration of Criminal Justice Act which is applicable to the
Federal Capital Territory, Abuja and various Administration of Criminal
Justice Laws, applicable in different States in Nigeria.
Regrettably, the Nigerian society has not been able to achieve an effective
and efficient system for the administration of criminal Justice despite the
bogus framework put in place to aid its effectiveness. The system is plagued
with several issues ranging from delay in the dispensation of Justice,
prisoners awaiting trial, congestion of prison facilities, and corruption within
the system amongst several other issues
The Concept of ADR
ADR is an acronym for Alternative Dispute Resolution. It is an encompassing
term that involves all mechanisms for dispute resolution that serve as an
alternative to litigation. Simply put, it is a method of resolving disputes
outside the traditional courtroom system. The concept of ADR in Nigeria
arose as a response to the numerous disadvantages associated with the
litigation process. Pursuant to Section 19(d) of the CFRN, international
disputes can be settled via arbitration, mediation, negotiation, conciliation
and adjudication. This provision of the CFRN clearly serves as the
foundational background for the applicability of ADR to the determination of
disputes in the Nigerian society. Albeit the provision of the CFRN clearly
gives backing to its practice, it is only necessary to state that the key
regulatory authority for ADR in Nigeria is the Arbitration and Conciliation
Act, which is applicable throughout the country.
Modes of Alternative Dispute Resolution
The various Alternative Dispute Resolution mechanisms may broadly be
classified into:
- Basic ADR Processes: this mode of classification comprises of the wellknown ADR processes such as negotiation, mediation, conciliation and
arbitration. - Hybrid Processes: as the name implies, this classification involves a
combination of the popular ADR mechanisms. ADR mechanisms such as
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med-arb, arb-med, mini-trial, private judging fall within the ambit of
this mode of classification.
Advantages of ADR - It is faster than litigation. ADR helps to preserve the importance of
attaining justice within time. It prevents delay in the system and it
consumes lesser time, as matters are quickly determined. - It preserves the existing relationship between the parties. Usually, It
promotes a system of win-win as opposed to the win-lose situation
predominantly associated with litigation. - It promotes privacy of the parties. In litigation, matters are generally
held in public and this eliminates the possibility of privacy of parties.
However, with ADR, the privacy of the offices is ensured. - It is less formal. The atmosphere in the courtroom is usually very
tense and most times, this discourages the litigants. With ADR, the
concept of formality is down the drain, and as such, the atmosphere is
usually friendly. - It becomes cheaper than litigation in the long run. The back and forth
involved in litigation increases the expenses of the litigants. As ADR
saves time, it also saves the money of the disputing parties in the long
run
Alternative Dispute Resolution and the Administration of Criminal Justice
in Nigeria
As mentioned earlier, ADR has several benefits attached to its practice.
However, its applicability is restricted to certain cases. By way of notice,
ADR cannot serve as an alternative to litigation in certain instances, which
include the following:
a) Generally, ADR is not applicable to criminal cases.
b) It cannot be applied to resolve election petitions due to its nature.
c) ADR cannot be applied to resolve matrimonial matters such as
dissolution of marriages, nullity of void marriages as provided for
under the Marriage Act.
d) Matters of urgency, which requires immediate attention and remedies
such as an injunction.
e) Proper and binding interpretations of statutes, laws and documents.
The argument that ADR is not suitable to cater for criminal matters is largely
hinged on the fact that disputes referred to ADR are personal, emotional
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and mostly arise from miscommunications between parties that can easily
be settled through a neutral third party or between the parties without any
external aid. Also, as stated earlier, the criminal justice system
encompasses different agencies for its proper functioning, and as such, ADR
does not fit into that framework for its effectiveness. Going further, it is a
well-established principle of law that a crime is not only committed against
the victim but also against the State and subject to public policy. Relying on
this, it cannot be said that ADR is suitable for the criminal justice system in
Nigeria. In BJ Exports & Chemical Processing Co. V Kaduna Refining and
Petrochemical Ltd,
1 the Court of Appeal held that ADR mechanisms are
restricted to civil matters. Placing reliance on this case, ADR is not suited
for criminal matters as they are against public policy and thus, cannot be
settled privately.
The major consensus in the administration of justice in Nigeria is that ADR
can only extend to minor offenses. The criminal justice system in Nigeria
recognizes the major role the State plays in its administration in order to
maintain peace and order in the society, and to ensure that offenders are
duly punished. The introduction of ADR into the criminal justice system
erodes the whole essence of deterrence as a method of reducing the crime
rate in the country. ADR focuses more on restorative justice; it provides for
a platform where the offender and the victim can be duly involved in the
resolution of the crime committed.
ADR mechanisms are slowly being introduced into the criminal justice
system in Nigeria. This can be seen through the concept of plea-bargaining
in Nigeria, which the Administration of Criminal Justice Act and the
Administration of Criminal Justice Law, Lagos State have embraced. This
concept of plea-bargaining is akin to ADR as they share similar features.
Advantages of Integrating ADR Into the Criminal Justice System in Nigeria
The foremost problem facing the Nigerian criminal justice system is delay in
the dispensation of Justice. There is indeed a truth in the popular aphorism
that “justice delayed is justice denied”. The system presents a situation
where the judicial arm of Government is unable to conclude criminal
matters due to unnecessary and unwarranted delays. This problem has
clogged the proper administration of criminal justice system in Nigeria. ADR
as a concept arose to address the inherent disadvantages associated with
litigation. Accordingly, ADR mechanisms are essential to the administration
of criminal justice in order to reduce the delays existing in the system.
Furthermore, ADR mechanisms promote restorative justice as opposed to
retributive Justice, which primarily focuses on “an eye for an eye” and “a
tooth for a tooth”. This system of retributive justice places importance on
1 (2003) FWLR (Pt. 165) 445 at 465
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the infliction of pain on the offender in order to serve as deterrence to
others in the society. It fails to explore the possibility of reintegrating such
an offender into the society. In addition, the retributive system of justice as
practicable in the Nigerian system throws the victim of the crime to the
background. It does not address the direct impact of the crime on the
victim; rather its aim is to punish the offender. The concept of ADR
introduces a system that caters for all the parties affected by the crime and
as such, cures the defect of retribution.
From the above, it can be distilled that the pros of integrating ADR in the
criminal Justice system in Nigeria focuses mostly on assessing the inherent
issues in our system which are delays in the system and the unnecessary
reliance placed on inflicting pain on the offender in the Nigerian society.
These benefits identified are in addition to other benefits associated with
ADR mechanisms.
Disadvantages of Integrating ADR in the Criminal Justice System in Nigeria
It is a known fact that there are two sides to every coin and accordingly, the
applicability of ADR to the criminal justice system in Nigeria has its own
disadvantages. The disadvantages include the following: - Its integration will rapidly increase the rate of crimes in Nigeria. It
creates room for prospective offenders to be relaxed due to the fact
that reliance is taken away from inflicting harm on the offender and
reliance is placed on resolution between the victim and the offenders.
Accordingly, this leads to a system where crime is committed and the
necessity of correctional facilities to deter crimes is tossed aside. - Another problem with its integration is that it does not properly cater
for felonies. The resolution of crimes between parties cannot apply to
certain cases such as rape, amongst others. Can a rape victim be duly
compensated? Or can a rape victim sit down to resolve the crime with
the offender? These questions present the challenges associated with
fully integrating ADR into the criminal justice system in Nigeria.
Conclusion
The integration of ADR into the criminal justice system eliminates delay in
the system. However, the pertinent question to ask is whether or not the
Nigerian criminal Justice system is ready to embrace its integration? It is my
opinion that ADR should only be fully embraced when there is a proper
framework regulating its applicability to serious offences such as murder,
rape, a nd armed robbery amongst others. For now, its integration should be
restricted to simple offences that can be resolved easily between the
parties.
