An Examination Of The Adoption And Application Of ADR In The Operation Of The Nigerian Police

ABSTRACT

The main lockup facility in the police station is known as “The Cell”. The Nigerian police cell like the cell in most developing counties are over flooded with detainees, a majority of whom are awaiting for the police to attend to their cases or court trial/conviction. Many persons who may later be found innocent of the crime(s) alleged spend years in cell while awaiting the completion of their trial. Much talk has been made of improving the Nigeria police system and indeed steps have been taken to allow a speedy delivery of justice. The recently enacted Administration of Criminal Justice Act¹ in Nigeria is one of such steps. To many, the Act is a laudable one as it has created several measures to ensure a quicker delivery of justice in the Nigerian Police System.

Despite the above, a lot still needs to be done. The Nigeria police force a whole has seen a level of improvement in recent times due to recourse to Alternative Dispute Resolution (ADR) mechanisms among other things. But very little ADR is applied in the Nigeria police force system. This work is aimed at examining of the adoption and application of ADR in the operation of the Nigerian police

TABLE OF CONTENTS

COVER PAGE

TITLE PAGE

APPROVAL PAGE

DEDICATION

ACKNOWLEDGEMENT

ABSTRACT

CHAPTER ONE

1.0      INTRODUCTION

1.1      BACKGROUND OF THE STUDY

• PROBLEM STATEMENT
• AIM AND OBJECTIVES OF THE STUDY
• SIGNIFICANCE OF THE STUDY
• PURPOSE OF THE STUDY
• SCOPE OF THE STUDY
• DELIMITATION OF THE STUDY

CHAPTER TWO

• LITERATURE REVIEW
• REVIEW OF THE STUDY
• THEORETICAL FRAMEWORK
• ALTERNATIVE DISPUTE RESOLUTION

2.3.1  CRIMINAL LAW

2.3.2  Victim

2.3.3  The Harm Caused

2.4      RESTORATIVE JUSTICE

2.5      CRIMINAL ADR AS RESTORATIVE JUSTICE

CHAPTER THREE

• ADR AND NIGERIAN POLICE: AN OVERVIEW OF THE ISSUES AND CONCERNS

3.2  ADR AND NIGERIAN POLICE SYSTEM

3.3  POSSIBILITY OF ADR UNDER THE CURRENT NIGERIAN POLICE SYSTEM

3.4  CHALLENGES OF ADR IN THE NIGERIAN POLICE SYSTEM

CHAPTER FOUR

4.1  CRITICISMS OF ADR IN CRIMINAL JUSTICE AND RESPONSES

4.2   LEGAL CHALLENGES TO THE APPLICATION OF ADR IN NIGERIAN POLICE SYSTEM

4.3   OVERCOMING THE PROBLEMS

CHAPTER FIVE

CONCLUSION AND RECOMMENDATION

LIST OF ABBREVIATION

VOM – victim-offender mediation

ADR – Alternative dispute resolution

VOC/S – Victim Offender Conference/Sentence

RDS – Restorative discipline for schools

RJ – Restorative justice

TABLE OF CASES

Section 127 of the Criminal Code

Section 128 of the Criminal Code

sections 127 and 128 of the Criminal Code

NNPC v Lutin ((2000) 50 WRN 81)

concept of sulh and ad takhim

Fawehinmi v 1GP, 2000, 7 NWLR (pt. 665) 481 CA; 2002, 7 NWLR (pt. 767) 606 SC

TABLE OF STATUTES

Economic and Financial Crimes Commission (Enforcement) Regulations 2010 pursuant to section 43 of the EFCC Act

Ugheneyove v State, 2004, 12 NWLR (pt.888) 626; Onagoruwa v State, 1993, 7 NWLR (pt.303) 49 at 107

Regulations 54 and 55 of the Prisons Regulations made under the Prisons Act, Cap. P29, Laws of the Federation of Nigeria

psychological and sociological theory

law legislates against in sections 127, 128 and 130 of the Criminal Code.

BJ Exports & Chemical Processing Co v Kaduna Refining and Petrochemical Ltd, (2003) FWLR (pt.165) 445 at 465; (2003) 24 WRN 74

Supreme Court in the case of Kano State Urban Development Board v Fanz Construction Ltd (1990) 4 NWLR (pt.142) 1 at 32-33

Administration of Criminal Justice Law No. 10 of 2007; Child’s Rights Act 2003, Cap. C50, Laws of the Federation of Nigeria 2004, sections 151, 204, 208, 209 and 223

Amnesty Programme of the Federal Government for Niger-Delta Militants

The Constitution by sections 174 and 211

CHAPTER ONE

1.0                                                               INTRODUCTION

One of the most vexed issues in Nigerian Police Force is the use of ADR to settle criminal disputes. Kumar notes that the applicability of ADR in the sphere of criminal matters is only a recent trend[1]. Despite the increased use of ADR in civil cases and in limited areas of juvenile and minor criminal law, ADR is rarely used to resolve disputes involving major criminal charges against adults[2]. The initial attitude of completely outlawing the use of ADR to settle disputes of a criminal nature in the Nigerian Police System appears to have given way to a reluctant acceptance of ADR in the criminal justice. Also, the applicability of ADR to criminal disputes appears to be restricted to minor offences such as misdemeanours and simple offences. However, research has shown that serious offences or felonies are the area where the need for the intervention of ADR in the criminal cases is felt most[3]. This is most apparent where the crimes are those offending a person or property or even the status of an individual, because in most of these cases, there would usually be an underlying relationship so that the offence or crime is in the first instance a rupture of a relationship which requires reconciliation and restoration above punitive sanctions. According to analysts, the need for forgiveness is highest where pain runs deep. According to Peachy[4], reconciliation is most necessary where the desire for retribution is greatest. There is little need for reconciliation where the loss is trivial or can be addressed by third- party compensation through insurance or the State, but there is a tremendous opportunity for reconciliation where pain runs deep.

For Peachy, restorative justice should not be restricted to minor offences because it is “clearly a waste of a very valuable resource.” Reconciliation and forgiveness that can lead to restoration is hardly achievable within the current accusatorial or adversarial criminal justice system founded on retribution. The alternative appears to lie in ADR which conduces more to reconciliation and restorative justice, enabling parties to generate options that can give all the parties concerned optimal satisfaction. Smith notes that victim-offender mediation (VOM) has begun to take account of the need to adapt to serve the more intense needs of parties involved in serious and violent criminal conflicts[5].

Thus, this paper examines the application of ADR in the Nigerian Police Force system and the critical issues that impact upon its adoption.

1.2      BACKGROUND OF THE STUDY

Alternative dispute resolution (ADR), a confidential and informal way to resolve disputes with the help of a neutral third person existed for a long time in the form of third-party interventions in a conflict. Conflict remained a part of living and inherent in every society. Although third-party interventions in disputes existed for a long time, the concept of ADR arose at the end of the 20th century. The adversarial resolution of disputes was the common mode of dispute resolution before this period. Frustration and dissatisfaction that arose from several factors which included delay, costs, and expense of litigation characterized the adversarial system of justice. The dissatisfaction with the adversarial system led to the search for other modes to resolve disputes dubbed as alternative. The lack of effective legal remedies to the people in need was one of the drawbacks in Nigeria’s law enforcement. The unresolved cases were more than the determined matters. The increased rate of offenses and the time it took to resolve matters in police acceded to the unresolved cases.

Disputes arose in relationships between citizens, state, or government. Parties could resolve their differences amicably through the mechanism of ADR, that included arbitration, mediation, conciliation, negotiation, and early-neutral evaluation, among others. The litigation process was adversarial, ended in a win-lose situation which destroyed relationships. ADR afforded parties opportunity to appoint the arbitrator or mediator, choose the venue, and the procedure. Nigerian police stations were congested, and litigation involved a lengthy, expensive, formal trial that gave litigants little control over their disputes, the venue of the proceedings, the hearing schedule or procedures. ADR used mediation and negotiation to resolve issues. However, mediation and ADR were hardly suited to sentencing processes. The restorative justice process handled lesser crimes to severe crimes with instruments that varied from Family Group Conference, Restorative Justice and Distributive Justice Conference. Resolved issues left people hurt, although they got their entitlements. Restorative justice healed and restored people, communities, and relations. Restorative justice held the power to reform the Nigeria legal system to better community interventions that reduce recidivism, criminality, prison congestion, and an overload of the criminal justice system.

Restorative justice (RJ), an emergent and evolving international trend in justice delivery was an inclusive and equitable justice theory, policy, and practice that found a more international recognition[6]. RJ prioritized victim and community interaction and engagement in the intervention of victims, offenses, offenders, and harm caused. It helped offenders understand the consequences of their actions than the conventional criminal methods. RJ recognized that offenses harm people and communities. It maintained that real justice must repair harm wound caused by crime and harms. RJ allowed the victim, the offender, and the affected community to determine the outcome and fix the crime. These stakeholders were central actors in any fair and equitable justice process. The trained facilitators worked at offender accountability, reparation to the victim and full participation by the victim, and community. Restorative processes allowed direct meetings between victim and offender and provided powerful ways to address a material, mental and physical harms caused by the crime, along with the social, psychological and relation wounds.

The role of restorative justice in prisons and the criminal justice, particularly in a system where access to justice was not guaranteed, included identifiable benefits that involved decongestion of courts, police cells, and prison detainees. It enabled speedy delivery of justice in nations with difficult and expensive access to justice and formal judicial forums. RJ tilted towards an unbiased treatment of disputants. It emboldened the confidence of the citizenry and the international community in any nation’s justice system that had less crowded prisons and police cells. RJ kept youths and first-time offenders from prisons that bred hardened criminals. It reduced the level of stigmatization of offenders. The framework for restorative justice in Nigeria, focused on the crime, its nature and severity, which comprised Victim Offender Conference/Sentence (VOC/S); Victim Offender Mediation (VOM), Family Group Conference (FGC), and Circles Processes, Restorative discipline for schools (RDS). It included Facilitated Transitional and Local Custom-Context Justice Interactions, Community RJ Stakeholders Conference, as well as, Distributive, Integrative/Interactional and Procedural Justice Healing Circles or Conferences. The government of Nigeria required Distributive, integrative and procedural justice healing circles that provide liberty, equality and fraternity. Against this backdrop, I explored the various ADR mechanisms, and employed the process in resolution of criminal disputes.

1.2      Problem Statement

Resolution of criminal disputes with Nigerian police was a major public concern that generated numerous studies over the last few decades. ADR was utilized to resolve conflicts outside court litigation. The delay in the judicial process prevented efficient justice delivery in the Nigerian court system[7]. The delay in criminal delivery caused general dissatisfaction with the traditional court system[8], which is the reason for adopting ADR in Nigeria Police system. The application of ADR in Nigeria police cases limited to minor offenses. Little information existed on how ADR facilitated the resolution of severe criminal offenses [9]

The problem addressed in the study was that the application of ADR in Nigeria limited to minor crimes with Nigeria police. Little literature existed on the use of ADR for severe offenses. I explored ADR for amicable settlement of criminal disputes.

1.3      Aim and objectives of the study

The main aim of this study is to examine the application of ADR in the Nigerian Police Force system and the critical issues that impact upon its adoption. The study seeks to achieve the following objectives:

i.                    To study the level of adoption and application of ADR in the operation of Nigerian police force.

ii.                  To ascertain the need for using ADR in settling criminal and civil cases

iii.                To ascertain the procedures on how ADR can be used settling cases.

iv.               To understand why ADR should be mainstreamed into Nigerian police system on a more holistic and systematic basis rather than the piece-meal approach that the criminal justice system is currently witnessing

1.5      Purpose of the study

The purpose of this study was to improve the understanding of the ADR mechanism through which Nigerian police system could settle criminal conflicts, aside from the traditional litigation system.

1.6      Scope of the study

This work is intended to explore the Nigeria Police System, analyze the mechanisms set in place to solve such problems, suggest the various forms of ADR that can be applied and steps that should be taken to ensure the proper application of these ADR mechanisms.

This research offered current information to help potential study into whether ADR could settle conflicts and reduce the accumulation of criminal cases in Nigerian police. The concept of interest was alternative dispute resolution.

1.7      Significance of the study

The use of ADR to resolve crime disputes was significant to maintain close and continued relationships in every community. Other motivations for the implementation of ADR included case management, cost effectiveness and efficiency, and the desire to create a more appropriate and culturally flexible system to deal with offenders in Nigerian Police system. Formal legal process deny individuals the right to fully participate in the dispute resolution process and it made conflicts the property of lawyers[10]. Traditional theories of criminal justice, on the other hand, view criminal act as a matter between the offender and the state, and it disregarded the use of ADR to resolve crime cases. Formal mechanisms for conflict management are not always effective to manage conflicts, and this necessitated a shift towards informal mechanisms for conflict management, that included ADR and traditional dispute resolution mechanisms[11]. In a society where the majority of the population are poor, with widespread illiteracy, lack of access to justice, and high cost and scarcity of lawyers, ADR was the best method of conflict resolution in Nigeria police civil or criminal cases.

Due to these rationales, the use of ADR in criminal justice system increased from time to time throughout the world. In many regions in Nigeria, the customary norms were more strong, relevant, and accessible than imposed and top-down legal norms; and people utilized the customary dispute resolution mechanisms to reconcile and control acts of revenge, even after the procedures and penalties in the formal criminal courts. Others argued that all types of criminal cases that ranged from petty offenses to serious crimes, such as homicides, as well inter-ethnic and inter-religion conflicts could be resolved through customary dispute resolution mechanisms in many regions of the country[12]. Hence, this research was not an exhaustive description of ADR and its components in Nigeria, but an exploration of its use in Nigeria’s Police system.

This study filled the gap in understanding the application of ADR in the resolution of severe criminal cases and developed problem statements through opinions of Nigerian professional involved in the criminal justice system[13]. This project tackled a less-researched aspect of conflict resolution through an alternative method to the traditional lawsuit. The findings furnished much needed insights into the processes by increased number of cases settled through the ADR process. Insights from the research assisted professionals, and stakeholders in the criminal justice system to use ADR mechanism to resolve conflicts. It supported the efficient resolution of criminal disputes. The settlement of disputes was a force for social change and addressed injustice in the system. A wide range of disputes resolved outside of court supported the fact that effective conflict resolution strengthened social stability and stimulated economic development.

This research benefited stakeholders, that is, litigants, legal practitioners, criminal justice practitioners, Nigerian police, among others, to understand the use of ADR for reduced case backlog. The study helped policy makers prioritize ADR in the administration of criminal justice.

1.8      Delimitations of the Study

This study was exclusively devoted to an examination of ADR approach for settlement of criminal disputes in Nigeria police cases. This implied that the scope of this study was limited to Nigeria to the exclusion of other African countries and other countries of the world. Accordingly, the essence of this research was not an exhaustive description of ADR and its components in Nigeria, but an exploration of its use in Nigerian police’s cases.

CHAPTER FIVE

5.0              CONCLUSION AND RECOMMENDATION

5.1 CONCLUSION

This work has attempted to dissect the Nigerian police system and has looked at the legislative  and other framework currently in place. The work has spotted the loopholes in the system. ADR was suggested as a way of curing the wrongs in the system. However knowing full well that there are certain facts, processes and laws that stand against the successful adoption and implementation of ADR and Nigerian police system, the work has also considered those problems, as well as possible solutions to these problems. The solutions include training and enlightenment, legislative frame working, mainstreaming ADR, as well as training of persons to be involved. The work also noted that the task is not one for the government alone, and that individuals, private organisations, non-governmental organisations, the press, religious leaders, the international community and others need to take various active part in the restructuring of the system to ensure not only quick justice, but true justice.

5.2   RECOMMENDATION

Presently, ADR was used to resolve issues related to family, environmental, commercial, and industrial disputes. The success of ADR in resolving these disputes compelled policymakers to introduce it in other sectors. Thus, I recommend in this exploratory study the formal and comprehensive adoption/inclusion of ADR for the resolution of criminal disputes in Nigeria. Insights from this study, had shown that presently criminal justice practitioners in Nigeria lack familiarization with ADR, lack adequate training in the area of ADR, and the extent of ADR utilization was limited. That ADR was equally unacceptable, unsuitable and ineffective in use for criminal justice delivery/administration within Nigeria as suggested by the findings of this study did not in any way dampen its appeal and restorative potentials. This was because another major finding of this study was that ADR when correctly/diligently applied brought satisfaction to the victim, offender and the community.