Sep 2, 2019

ADR In Criminal Litigation: An Abomination Or Necessary Evil | Nonso Nonso Anyasi

The picture of a purported settlement agreement executed between an alleged offender and the parents of a fourteen year old girl who was defiled has been making the rounds on Social Media, with many lawyers and PUBLIC commentators condemning the said settlement agreement which was presided over by Office of the Commissioner of Police of Rivers State.
Many lawyers have opined that this settlement agreement is alien to our criminal jurisprudence, as offences dealing with rape, sexual harrasment and defilement of minors should be placed outside the scope of operation of Alternate Dispute Resolution (ADR) mechanism in order to emphasize the gravity of such offences. 

It has become necessary to critically examine the position of the law on ADR in criminal litigation in Nigeria. Does the law expressly prohibit “settlement” of criminal cases? Before engaging in an exposition of the jurisprudential principles of criminal litigation as it applies to this case, it is pertinent to briefly state the facts of this notorious case for the ease of assimilation. 

The father of a fourteen year old girl, upon the advice of his Counsel brought a petition to the Office of the Commissioner of Police in Rivers State, alleging that his daughter had been sexually defiled by a certain Chief in the community. They sought the arrest and prosecution of the offending Chief. Subsequently, the suspect who was accosted by the police confessed to his complicity.  An agreement was then reached between the accused person and the victim’s family that the accused person and his family would apologise to the victim and her family, and also be responsible for the medical bills of the victim. It was also agreed that the victim would undergo monthly check up at a specified hospital for six months. It was further agreed that upon the final check up on the sixth month, the victim would withdraw the petition if she has been certified to be medically fit and okay. The accused person also agreed to pay a specified sum of money as immediate compensation to the victim’s family. The agreement was drawn up by the legal Counsel of both parties, and executed by the parties and their Counsel. The victim, being a minor did not sign this agreement, but it was signed by her father. 

The picture of this settlement agreement which was leaked on Twitter as soon as it was executed has attracted serious opprobrium from different quarters. Alternate Dispute Resolution (hereinafter “ADR”) is not alien to our criminal jurisprudence. Before the introduction of colonial rule in Nigeria, disputes were settled amicably amongst the interested parties. There was no distinct discrepancy between civil and criminal cases in pre-colonial cases, as there was no codified system of laws. The head of communities in most instances acted as an umpire in settling disputes. Where offencs were committed against a member of the community, the offender would be made to pay restitution to the victim, and also be made to suffer moral reproach and disgrace. The principle of restitution was however the most paramount principle behind punishment of civil offenders in pre-colonial Nigeria. 

However, with the advent of colonial rule, and subsequently independence, the legal system became formalised with the introduction of the courts and prison system. Offenders were prosecuted by the state on the behalf of the victim and the community, and in most cases, sentenced to either jail term or compelled to pay fines to the state. There are several principles behind the concept of punishment in modern day criminal jurisprudence, including:

1.      Retribution: This is based on the biblical theory of an eye for an eye, wherein offenders are made to suffer punishment parallel to the wrong they have committed. Sentences of imprisonment, death penalty, and corporal punishment are based on the retributive philosophy.

2.      Restitution: Here, the offender is given the chance to make amends for his past misgivings. The offender is punished in such a way that the society and/or the victim are compensated for his crimes. Sentences such as community service, fines, and orders for forfeiture of property are classic examples of the restitutive principle.

3.      Detterence: Often times, some offenders are used as scape goats to teach a lesson to other members of the society to desist from engaging in similar vices. This priniciple which is also known as the utilitarian principle by Western Legal Scholars is more pronounced where the victim has shown remorse or has already offered to make restitution for his actions. Sentence of both imprisonment and fines on convicts is an example of the detterence philosophy at work.

4.      Rehabilitation: This theory aims at correcting and re-integrating offenders into the society. The offenders are given the lessons which make them vilify their previous crimes, and are re-integrated into the society to live crime-free lives. This principle is mostly utilised for juvenile delinquents and first time offenders.  

The Nigerian criminal justice system which attempts to combine all the above principles can however be said to be largely retributive in nature. It is trite that no person shall be punished for an offence except if such punishment is defined and the punishment prescribed in a written law. A critical review of the penal laws of Nigeria will reveal most criminal punishments are retributive in nature. It places much premium on inflicting punishment and pain on the offender than any real attempt to reform and reintegrate the offender back into the society. From the time an offence is committed to the trial and judgment, all our legal rules is concerned with is proving guilt according to the letters of the law. Little or nothing is done about repairing the damage done by the crime. Victims of crime and even the community who suffer the direct impact of the offence are relegated to the background. 

The resultant effect of this over-reliance on the retributive system is that the court rooms are over-congested with too many cases and litigation is prolonged before justice is achieved. It takes time for the guilt (or innocence) of an accused person to be established, due to the traditional problems of shortage of facilities associated with our juducial system. Trials at the high courts take as long as three years before a verdict is reached. An appeal from the Court of Appeal to the Supreme Court can span for as long as six years. Ordinarily, an accused person remains incarcerated in custody as a guest of the state during his trial, and may be discharged by the apex court on appeal. He would then be made to have suffered unjustly for an offence which he is innocent. The case of Shande v State (2005) 12 NWLR (PT 939) 301 wherein the accused person was acquitted by the Supreme Court after facing trial for eight years is a classic example of the tribulations facing our retributive criminal justice system. 

The proximate impulsion to this treatise being the recent settlement agreement to oust the jurisdiction of the court in trying an alleged criminal offender is the critical review of the application of ADR to criminal litigation in Nigeria. Recently, the policy framers of the Nigerian Criminal Justice system have begun to embrace and intigrate ADR into our criminal jurisprudence. The Administration of Criminal Justice Act (ACJA) contains a legal framework for the adoption of a mild form of ADR via plea bargaining in Nigeria. In the case of FRN v Igbinedion & Ors (2014) LPELR-22760 (CA), the Court of Appeal in defining plea bargaining adopted the definition of the Black’s Law dictionary thus: 

“What is a plea bargain arrangement? Bryan Garner’s Black’s Law Dictionary 8 the Edition at pg. 1190 defines plea bargain as “A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or to one of multiple charges in exchange of some concession by the prosecutor usually a more lenient sentence or a dismissal of the other charges.”

Plea bargain also known as plea agreement or plea deal, although not expressly stated to be an ADR mechanism, can be regarded as such because its form and effects conforms to the principles and aims of ADR. It has been submitted that plea bargaining is a case management strategy like other ADR mechanism which brings about effective case management.[1] In a plea bargain arrangement, the accused person agrees to plead guilty to the some or all of the offences he is charged with, in return for a lesser punishment. Plea bargains are mostly activated in corruption trials involving the EFCC. It was used in the trial of ex-IGP of Police Tarfa Balogun, and the trials of ex-Governors Lucky Igbinedion, and Diepreye Alamieyeseigha of Edo and Bayelsa States, amongst others. The advantages of plea bargain which have been given judicial notice by the Court of Appeal in FRN v Igbinedion (Supra) include: 

“(1) Accused can avoid the time and cost of defending himself at trial, the risk of harsher punishment, and the publicity the trial will involve.

(2) The prosecution saves time and expense of a lengthy trial.

(3) Both sides are spared the uncertainty of going to trial.

(4) The court system is saved the burden of conducting a trial on every crime charged.”

It must however be stated that plea bargaining can only be activated where there is a pending charge before a competent court. In the Rivers State purported settlement agreement under consideration, the matter was still being investigated by the Police, who were yet to prefer a formal charge against the accused person. Therefore, it can be submitted that this does not amount to a plea bargain arrangement. The best legal terminology to describe this settlement is mediation. It is clear from the facts that the agreement was signed ssubject to the supervision of the Nigerian Police Force who were investigating the matter. It is pertinent to note that the Police Force is given wide powers under Section 4 of the Police Act which provides that: 

“The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.”

The Police therefore have the primary responsibility of apprehending offenders. But they are not saddled with the task of punishing offenders. However, they have a general duty to maintain the peace, law and order in the society. It is the duty of the state to prosecute and punish offenders, and not the police. Before the state can prosecute, the police must first file a first information report which informs the relevant state department (Ministry of Justice or Department of Public Prosecution) of the purported commission of the offence. It is important to note that the entire criminal system in Nigeria is based on the exercise of discretionary powers by the parties involved. The Police Force in submitting an information report to the Department of Public Prosecution exercises discretionary powers. They are not bound to charge every percieved offender to court. The Ministry of Justice or Department of Public Prosecution (as the case may be) is also not under any obligation to prosecute all persons who have been referred to them. The Supreme Court in the locus classicus case of Akpa v. State (2008) 14 NWLR (Pt.1106) 72 explained this hallowed position of the law when the Noble Lord Nikki Tobi JSc opined thus:

The prosecution has an unfettered discretion to prosecute person in court and because the discretion is unfettered, court of law do not have the power to question it…The only jurisdiction of the court is to try accused person presented before it for prosecution. The prosecution is not under any regimental duty or any duty at all, to charge all possible accused persons". (@ pg 18 paras A- D). 

Therefore, it is submitted that the Police Force and the Ministry of Justice should be exonerated from whatever legal and moral vilification that the purported settlement agreement attracts.  

As stated earlier, the purported settlement can be best described as the proceeds of a mediation agreement. The Victim-Offender Mediation program is not unknown to international jurisprudence. The Victim-Offender Mediation program is aimed at promoting direct communication between the victim and the offender. The victim has the opportunity to ask questions, address the mental, psychological and emotional trauma caused by the crime and its aftermath and seek reparation.[2] It lays more emphasis on restitution and reconciliation of crime related offenders through one on one meeting between victims and offenders subject to the oversight of trained mediators, rather than focusing on the retributive system which characterises our outdated criminal litigation system. This method is the oldest and most widely used form of ADR in criminal cases in other jurisdiction especially when juveniles are involved.

A proper analysis of the terms of settlement of the Rivers State Agreement reveals that each of the clauses is geared towards the restorative or restitutive principles of punishment. The accused person and his family were made to undergo moral reproach by publicly apologising to the victim and her family. The case has aleady gained sufficient notoriety, and his identity as a potential sex offender is not in question. Furthermore, and in addition to the moral punishment of apology, financial sanctions has also been imposed on him. The fine which he would pay goes directly to the victim. This is unlike the traditional penal system where fines imposed by the court are payable to the state and becomes the property of the state. The offender has thus been compelled to make amends to the victim by paying for her medical treatment and also by the payment of damages. 

A critical evaluation of the entire agreement will reveal that the mere execution of the agreement does not immediately oust the jurisdiction of the court to prosecute the accused offender.  In fact, the petition submitted to the police was not withdrawn at the time of executing the agreement. The most important clause in the agreement is term No. 5 which provides that the victim and her family will withdraw the petition if she is certified to be medically fit after the final medical check to be carried out on a pre-determined date. Thus, the victim is given the freedom to pursue the petition in the event that she has not benefitted from the proposed restitution. The entire agreement is one which exemplifies the restorative approach to criminal jurisprudence which places the victim at the centre of proceedings, as opposed to the traditional retributive approach wherein the offender is the centre of proceedings. It is only in extremely rare cases involving theft of property that the accused person in criminal proceedings is compelled by the courts to make restitution to the victim.[3]

It is however understandable that the gravamen of public opprobrium against this purported settlement agreement (and Victim-Offender Mediation) is the percieved trivialisation of the grave offence of rape and sexual molestation. It has been argued that such agreement operates to make the offence of rape very lucrative and appealing to potential offenders who now know they can avoid jail term by the simple payment of compensation to the victim. In blancing this conflict between the need to impose retributive/detterent punishment on offenders and the need to engage in restitutive practices, the dictum of the Court of Appeal in the case of Okomu Oil Palm Ltd v Okpame (2007) 3 NWLR (Pt. 1020) p.71 is most instructive thus:

After all, it must be remembered that justice is not a one-way traffic. It is not justice for the plaintiff alone. It is not even only a two-way traffic in the sense that it is justice for the plaintiff and the defendant alone. I think really justice is a three-way traffic in justice for the plaintiff who is crying for a redress of the wrong done to him; justice for the defendant who is crying that he should be heard and his defence considered before being ordered to pay any sum claimed against him and also before being mulcted in cost; and finally but very important, justice for the society at large whose social norms and psyche are certainly going to be adversely affected if it cannot be seen by the common but reasonable man that upon the facts as laid down, justice in the real and true sense of that word, has been seen to have been done by the arbiter." (Per Aderemi JCA). 

Hence, has justice been done to all aggrieved parties in this case? Has justice been done to the accused ofender who has been made to make financial restitution for the consequences of his act? Will this deter him from committing similar act in the future? Has justice been done to the victim who has received compensation for the injury she suffered? Has justice been done to the victim’s family who have received an apology and monetary compensation from the offender and his family? Does this apology and monetary compensation diminish and overshadow the shame of having a defiled daughter? Has justice been done to the state by this agreement? The agreement has saved the state the resources it would otherwise have expended in prosecuting and punishing the offender. However, will this prevent future occurences of similar crimes in Rivers State? Will the society learn from this event and come to the conclusion that defilement of underage girls is unacceptable, or will they be willing to risk the venture of public apology and payment of monetary compensation just to have a bite at the forbidden apple? 

This writer invites his readers to draw their own conclusions.

Nonso Anyasi is a Lagos-based Lawyer. He tweets @Oluwanonso_Esq

[1] Alternative Dispute Resolution and Its Relevancy in Criminal Matters, Aduaka & Onnome, International Journal of Business & Law Research 6(1):75-84, Jan.-Mar., 2018

[2] J.R. Gehm “Victim-Offender Mediation Programs: An Exploration of Practice and Theoretical Frameworks Western Criminology Review, Vol. 1 No 

[3] See the case of Ikpe v FRN & Anor (2018) LPELR-45567 (CA)

Written By:
Nonso Nonso Anyasi