The Gist with DRC!
(Keynote at session of Nigeria Chambers of Commerce Dispute Resolution Center session on ADR in
criminal justice administration in Nigeria – Abuja, 2 November 2021)
Chino Obiagwu, SAN1
Janet James was a housemaid to a family in Ilupeju Lagos. She brought her 10-year old only
sibling to live with her. On the fateful night, the boy did something wrong in the house, and
she flogged him at the upper back shoulder with a heavy stick. The boy collapsed and later died
as she was rushing him to the hospital. In panic, she wrapped him in a sack and took him to her
pastor for resurrection prayers, which futilely lasted all night. She was later arrested and
charged for murder, punishable with death sentence. Her aged mother heard about it and went
into severe illness. She is about to loose her only two children. After 14 years of back and forth
in the courts, Lagos prosecutors agreed to plea bargain the case, and she pleaded guilty to
manslaughter, and was sentenced to 15 years in prison. The mother lived.
Aduke was selling ‘bole’ on Oshodi railway tracks, with her infant baby strapped at her back.
There was a raid of those unlawfully using the rail lines by the Lagos state environmental task
force. Most traders ran but she could not. So, her goods and tools of trade, all not worth more
than 5,000 Naira were taken away. She was also arrested and taken to the detention center in
Alausa, detained from Friday till Monday when she was arraigned before a special mobile
court. The magistrate, a female and mother of an infant baby, could not sentence her to
imprisonment upon her plea of guilty. How would she survive with this baby in Kirikiri female
prison?. So the kind-hearted magistrate convicted her and sentenced her to sweep Gabagada
General Hospital for a month. After a week of sweeping the compound so well and neatly, the
management recommended her for employment as cleaner. She is now living a new life.
Over arching purpose of criminal law
1 Chair, Nigerian Coalition in the International Criminal Court; Lead Counsel, Legal Defence & Assistance Project;
Chairman, National Working Group on Reform of Criminal Justice Administration in Nigeria 2003-2011.
2
Criminal justice administration is not just for crime prevention, and as some will say,
punishment of offenders, but it is for rehabilitation, healing and restoration of society. So that
is why restorative justice is an integral part of modern criminal justice systems, as encapsulated
in the Administration of Criminal Justice Act 2015. I was chair of the working group that
prepared the first draft of the law in 2004-2005, and our goal was to modernize criminal justice
administration in the country, to achieve the over-arching purpose of improving safety and
security in the country.
When we discuss Alternative Dispute Resolution in criminal justice administration, we are
talking of wide range of Alternatives, that would achieve the modern, reformist, purposes of
criminal law: ranging from non-custodial sentences, to reparations, rehabilitation, and outright
decriminalization of petty offences. We are talking of criminal justice practitioners thinking
outside the box of orthodox penal laws, which has been destined to only punishment, on the
basis that harsh punishment is a deterrence to criminality. Empirical data have shown that the
real deterrence to criminality is the high possibility of apprehending offender and effectively
prosecuting them.
A lot of these ‘out of box thinking’ is already taking place in many states. In its 2019 report of
the justice ministry, Lagos state reported that:
The Citizens’ Mediation Centre is charged with the responsibility of providing free
legal services to residents of the State. The Centre also promotes the use and practice
of mediation as an alternative to litigation in conflict resolution amongst the people of
Lagos State.
Services rendered by the Centre include matters relating to Landlord/Tenant issues,
Employers/Employees disputes, Family Matters (including marital disputes, Child
Custody etc). Others are Property Inheritance and Land Matters, Monetary Claims,
Local disputes and Commercial laws.
Within the period under review (May, 2017- April, 2018), a total number of 47, 292
new cases came to the Centre. Out of this number, a total of 25, 191 cases resolved with
the remainder at various stages of resolution.
The total value of settlement of debt related matters achieved by the Centre during the
period under review (May, 2017- April, 2018) as settlement between parties was One
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Billion, Three Hundred and Fifty-Two Million, Seven Hundred and Forty-Five
Thousand, Three Hundred and Ninety-One Naira only (N1, 352, 745, 391).
In the period under review, the Ministry, through its Directorate of Citizen’s Rights
(DCR) received a total number of 1308 Petitions out of which 1070 have been resolved
with 228 at different stages of resolution.
The Ministry though the Human Rights Protection Unit of the Directorate treated a
total number of 3,418 (Three Thousand, Four Hundred and Eighteen) cases from May,
2017 to April, 2018. This figure encompasses cases treated at the Taskforce Unit,
Human Rights Violation, and such other matters that affected the integrity and dignity
of person’s resident in Lagos State.
The Community Service Unit affirms restorative justice as one of its policy objectives
and adopts rehabilitation and restoration of the offender as guiding principles for
imposing punishment.
The Community Service Officers attend court hearings and recommend community
service based sentences to Magistrates for suitable minor offenders, including
environmental offences. In addition, the Community Service Field Officers, supervise
the offenders ordered to perform community service at suitable Work Placement
Centers.
In the period under review, a total number of 2,249 offenders were sentenced to
community service for various offences. The sentences were served at various public
institutions including Hospitals, Remand Homes, Traffic Management and Market
sanitations. 2
Lessons learnt
So, when the criminal justice reformers talk of ADR in the justice system, we are talking of
wide range of approaches that will reduce the punishment-based approach to criminal justice.
Some of the approaches include:
2 http://lagosministryofjustice.org/ministerial-press-briefing-on-the-activities-of-the-lagos-state-minstry-ofjustce-on-the-occasion-of-3-years-in-office-of-his-excellency-mr-akinwunmi-ambode/
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• Non-custodial sentences – community service, suspended sentence, reparations, parole,
fines
• Victims compensation – section 330-332 of ACJA provides for full compensation for
loss suffered by any victim of crime.
• Victim-offender mediation – in addition to reparation, which is material restpration of
what the victim lost, there is need to restore the relationships, respect victims’ the right
to know, and offenders’ duty to reconciliation and remorse to the victims and the
society.
• Rehabilitation of offenders – to bring them back to society
• Decriminalization of petty offences – as those offenders, when exposed to
imprisonment, will return to society much more skills at criminality.
• Plea bargain
One of the main ways to ensure restorative justice is infused into the criminal justice system is
the use of plea bargain. Under Sections 270 ACJA, the court may accept a plea or sentence
bargain from any defendant or his legal representative “by way of an offer to accept to plead
guilty to a lesser offence than that charged”. The Attorney General has the responsibility to
endorse such agreement, as safeguard against abuse by prosecutors. The key consideration in
reaching a plea bargain agreement is “the interest of justice, the public interest and public
policy”.3 However, plea bargain shall not be permitted in certain cases, including in offences
involving grievous violence or sexual assault.
The National Working Group had posited in its 2004 report that formed the basi
s of the first
draft of ACJ Bill, that comparative studies had shown the effectiveness of plea bargain in
managing case flow and reducing undue pressure on the prosecutions and the courts. It is also
effective in ensuring that minor offences are dealt with expeditiously and that first offenders
are not unnecessarily exposed to long imprisonment that could defeat the restorative and
rehabilitation purposes of criminal justice administration.
Plea bargain is a process in criminal proceedings whereby the defendant and the prosecution
work out mutually acceptable modalities for the disposition of the case; including the guilty
3 Section 270(5) ACJ Act
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plea of the defendant to lesser offence than the one charged in the complaint or information or
some other condition which may be imposed by the prosecution.
Plea bargain processes
• The Act provides checks and balances to prevent abuse of plea bargaining (Sections 270-
274).
• The defence can write to the Attorney General for plea bargain and the latter to receive and
consider Section 270(1)a).
• The prosecution may enter into plea bargaining with the defendant, with the consent of the
victim or his representatives during or after presentation of the evidence but before the
evidence of the defence upon fulfilment of the following conditions; Section 270(2).
- The evidence is insufficient to prove the offence charged beyond reasonable doubt.
- The defendant has agreed to return the proceeds of crime or make restitution to the victim.
- The defendant in a case of criminal conspiracy has cooperated with investigation and
prosecution of the crime for successful prosecution of other offenders. - The prosecutor is of the view that the offer is in the interest of justice, public interest and
policy and will prevent the abuse of legal process.
• The prosecutor and the defendant or his legal representative may, before the plea enter into
agreement as the term of sentence, plea of guilty, lesser offence and or appropriate sentence
(Section 270(2,3,&4).
• The judge shall not participate in the negotiation and discussion on plea bargain (Section
270(8) but has supervisory role (Section 270(9)).
• The judge/magistrate to confirm the terms of agreement whether made voluntarily (Section
270(10)).The judge/magistrate may accept or reject the terms of plea bargain subject to
certain considerations (Section 270(10) a, b &c).
• By the provisions of Section 270, the ACJA recognises plea bargain as an approach for the
speedy dispensation of cases.This provision of the law helps in quick dispensation of justice
and saves the time and resources that would have been wasted in trial.
Conclusion
It is hoped that robust use of plea bargain and other ADR processes in criminal justice
administration will reduce delays, increase efficiency in case management, restore confidence
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of the public in the justice system, and facilitate modern approach to penal justice in the
country.
By Mohammed Farouk
