By Nathaniel Awuapila
My panel discussed on the theme: Restorative Justice, ADR and Mediation in criminal justice and prison reforms
The emphasis of my presentation was: That Restorative Justice, ADR and Mediation in criminal justice and prison reforms are viable opportunities to break the cycle of incarceration
STANDPOINT OF THE DISCUSSION
I made the point that restorative justice, mediation and alternative dispute resolution processes are important, yet less cultivated pathways by the criminal justice sector. Now, precisely because key decision makers in the justice sector have not tried sufficiently to popularize these approaches, therefore litigants have not yet come to view same as appropriate, effective and sustainable strategies toward speedy dispensation of justice to individual citizens as well as toward achieving full prison reforms, with the added effect of healing the offenders and offended communities and thus contributing to the reduction of crime over a period of time.
I observed that due to the fact noted above, we have over-crowded prisons occupied by persons some of who have no business in the prison and others who, barring ignorance on their own part and on the part of their accusers and victims, would have been reconciled with their now enemies.
I explained that restorative justice as a theory and method in criminal justice aims to achieve restitution, where convicted (and yet-to-be-convicted) criminals are urged to accept responsibility for their offences through meeting victims and making amends to them or the community. It thus provides helpful opportunities for the criminal to achieve some measure of reconciliation or forgiveness for crimes committed and as well, affords the victim and aggrieved community the opportunity to forgive and be healed of their trauma as a result of the crime.
I noted that ADR approaches, when well applied, tend to result in the forgiveness of grievances caused and borne by the disputing parties and victims. These approaches tend to review hurts, perceived or real, against the backdrop of mutual interest and commitment to the restoration of lost or strained relationships. The processes adopted by the courts of law, on the other hand, are tedious, sometimes impersonal and mechanical, often resulting in the destruction of already strained relationships without the likelihood of restoration.
I proposed that to fully address the problem of reforms in the prison system and indeed the entire criminal justice system, governments, particularly decision makers in the justice sector must proactively adopt, promote, and engage reconciliatory measures in dispute management, especially they must present both options, i.e. litigation and ADR, as alternatives of equal importance and equal status, in which case resolutions reached through ADR should be regarded as equally and fully binding by law, and treated as such (remarkably, the multi-door courthouse processes in Abuja FCT already does this, and hopefully elsewhere in Nigeria).
I also encouraged that processes leading up to restitution to offended communities should be popularized and encouraged, because of their healing effect and the long term promises of a less traumatized and less violently aggressive and crime-prone society. However, to achieve these healing, reconciliatory effects, even the court processes, at least as practiced in Nigeria and in other developing nations, will need to be significantly reviewed and adjusted to give prominence to the ideal of judgment as means of correction rather than judgment as condemnation.
CRITERIA FOR A SUSTAINABLE CRIMINAL JUSTICE SYSTEM
I explained that the idea of a sustainable criminal justice system is that it should both serve its purpose now till the foreseeable future and that it should accrue benefits to society collectively without leaving in its trail significantly negative social, economic, political, and psycho-spiritual consequences that put at risk, or threaten, social stability, collective security, as well as the personal wellbeing of society’s offenders, the offended, the victims, and administrators or servants of the criminal justice system.
I emphasized that a criminal justice system deserving of the designation, ‘sustainable’, must be solidly based on certain principles that should be treated as inalienable, the fulfillment of which should be of paramount importance to each and all citizens as well as governments. I regard among such principles, the following:
1) United Nations Universal Declaration of Human Rights,
a) Article 1: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”(also, Article 5, which condemns torture and all inhuman and degrading treatment or punishment, is important for special emphasis)
2) African Charter on Human and Peoples’ Rights,
a) Article 2: “Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status” (also, Article 5, emphasizes the need for respect respect of the dignity inherent in a human being and condemns all forms exploitation and degradation of persons is also important for emphasis).
3) Along with the foregoing, also belief in the inalienability of the family is critical and as well, treatment of each individual as a whole person. Thus, all national governments should be committed to protecting, preserving and promoting the individual and the family, be it nuclear or extended, and recognizing that the offender is from a family, and ill-treatment of the offender has significant impacts on the family unit from which (s)he comes. As the consequences on the family unit have far-reaching implications touching on the larger community, therefore, dispensation of justice should truly be viewed as faithful service to humanity.
4) I explained that The Creator also from the beginning that all humans should enjoy all these rights and privileges, since at creation, He breathed His spirit into us and that made us living beings; that from the beginning He intended that there should be family, which is why there was Adam and Eve; that to God, the human family is one unit under the Divinity, because we are all His sons and daughters.
THE PRISON SYSTEM AND QUEST FOR ITS REFORM
The limitations of the prison system are exposed by remarks by notable persons and incarcerated (or formerly incarcerated) persons.
I. American Law Professor David Cole remarks that offenders are committed to prisons ‘precisely so we will not have to pay attention to them (Cynthia, B Feb. 4 2011)’;
II. Former Premier Nathan Ree’s of New South Wales states: ‘we have still got 500 cells empty. I don’t mind if we fill them up, and if we fill them up and have to build another jail, we’ll build another jail’;
III. Nigerian prisoners are ‘offered the poorest quality of food…eaten in filthy and dirty cells…a cell at Ikoyi Lagos prisons of 500 inmates is used for more than 2000 inmates (Ekwuruke, H. Nov 12, 2005)’;
IV. Gen Ishaya Bamaiyi (Retired), himself a former prisoner, confesses: ‘My perception of Nigerian Prisons is that even my enemy should not be sent there…our prisons are in a very bad shape and not in a position to reform anybody. The worst thing that is happening to Nigerian prisons is the prison staff themselves. The prison staff are the ones who even need to be reformed. The environment is also very bad, due to…greed (Nigerian Tribune, 25 Sept 2010);
V. People in prison get sick due to overcrowding and prison conditions ‘…we are more than 80 in one cell…when I took ill, my wife brought some drugs for me, but prison officials seized them and refused to attend to me medically (Franklyn Enekireru in Patience Ogbo, 234Next, 23 Nov, 2010)’;
VI. ‘We sleep over ourselves on the cold floor with no mat. You cannot turn, you have to stand up to turn; and if you even get a place on the floor to lie on thank God’ (Silas, an inmate confesses,) (Abiose, A. 234Next 22 Nov 2010);
VII. ‘Most prisoners, when they are released have nowhere to go to. They are often forgotten by the society. It is as though the society has rejected them and that is why some of them return to crime (by Chino Obiagwu, in Abiose Adelaja, 234Next 23 Nov 2010);
VIII. ‘The conditions we saw and the story we heard are a national scandal (Amnesty International, Reuters, 25 Feb 2008)’; “the prison situation put the Federal Government (FG) in constant danger of breaching the human rights of the inmates and lowering their sense of human dignity” (President Goodluck Jonathan, This Day Dec 13.2010).
IX. “We have to deal with inadequate infrastructure. We have to deal with the judicial reforms – in fact most prison’ problems are as a result of ineffective/corrupt judiciary, which can’t deal with the case loads – result . . . non-speedy dispensation of justice – over staying in prisons by the pre-trial detainees. Thirdly; most government systems the world over, tend to believe that security is only attainable through effective development of Police Force, at the expense of the Prisons, Judiciary and the Prosecution. An effective police force is that which arrests as many “offenders” as possible. End result – blotted prisons without enough infrastructures, budgeting . . . What I am saying is that we in prisons can’t deliver the minimum standards rules as required of us, due to the pressures which are obtaining in our working environment. It must be borne in mind that the rate of expansions of our current/existing institutions can’t match the rate at which the prisoners’ populations rise in the penal institutions. All governments, the world over, tend to build the capacity of the police at the expense of the prisons. A well-developed police does more arrests . . . The Judiciary and the prisons are least considered for adequate budgeting and capacity building. This then calls for deliberate efforts, within the laws of the country, of course, to try and reduce the pressures being exerted on the prisons by the ever increasing prisoner-numbers (George O. Okumu, Corrections’ Advisor, Rule of Law – UNAMA, Afghanistan, in email community with Nathaniel Msen Awuapila, Dec 15 – 17 2010).
X. The case of the Nigerian Prisons
- Prisons: 227 (as at November 2010)
- Prisoners: 47,508, of which 707 juveniles in Ilorin, Kaduna and Abeokuta Boarstal Institutions; 33,645 ATPs, 13,863 Convicts; recidivism rate, approx 18% (?!?) (in Lagos Prison, of 4,381 inmates as at June 2009, 3,704 were ATPs and only 667 convicts).
- This situation depicts a system that has least respect for the basic human rights of citizens and hardly much regard for the rule of law. This situation needs to change urgently, but can change only when new approaches to the dispensation of justice are introduced by way of introducing Restorative justice as key strategy and ADR, Mediation as appropriate measures toward reforming the criminal justice system, thereby de-congesting prisons, respecting the humanity and inherent dignity of incarcerated or convicted persons, and introduce the element of forgiveness, reconciliation and restoration of relationships into the mainstream of justice dispensation.
- What the criminal justice system should have achieved are: evident justice for the offended and to the offender; a secure environment for everyone; cost-effective budgeting for the prison system and the entire criminal justice system; preventive measures where through such initiatives as ‘justice reinvestment’ (a new coinage fast gaining currency internationally as a strategy to invest in infrastructural and human development processes with the aim of preventing/reducing crime and building safer communities.
SUGGESTIONS, RECOMMENDATIONS, LOOKING FORWARD
I observed/suggested that:
- Incarceration does not appear to prevent or reduce crime.
- Most criminals come out of prisons or places of detention more hardened than they were before they got there.
- Nigeria, indeed all of Africa, is bedeviled by poverty and want in the midst of affluence: key reasons for unrepentant proclivity toward crime and violence.
- Lunatics should not be in prisons, but in asylums where they can receive appropriate professional medical treatment. Petty thieves and even criminals should be offered other opportunities to serve their terms via restitution, community service, etc, rather than crowding them in prisons without practical use and value-added to society.
- Persons certified to be psychological fundamentalists, popularly referred to as ‘terrorists’ also do not belong to our prisons and if kept there, it will be counterproductive. Persons like that should be confined to mental health centers and given appropriate medical treatment and subjected to psychological reformation programs. If they fail to respond to treatment, several other alternative measures may be tried, but traditional approaches including incarceration and mere torture may also be counterproductive.
- We need better-trained personnel in the prison system and prison facilities should be sufficient in number and adequately maintained as a matter of necessity.
- Once restorative justice is accepted as the ideal and mediation as well as appropriate ADR approaches are adopted by the state as important justice dispensation processes, then incarcerated persons will have opportunities to confess/be reconciled with the persons and communities they have grievously offended, which will significantly reduce the stigma on prisoners as never-changing criminal elements. That is to say, that with the introduction of restorative justice, mediation and ADR, the humanity of offenders will be better appreciated, they may cease to be regarded as pure-criminals, but precisely as offenders, that they can indeed change for the better, that they can be better persons in the future and so never to foreclose their potentials upon the incidence of one or few offences committed.