By Valentino Buoro
So much is happening in the world of mediation in our jurisdiction. So fast-paced are these developments that it might take a while for the populace to fully appreciate and internalize their import.
In this column, we have in the last couple of years explained and made the case for the use of Alternative Dispute Resolution methods in commercial and non-commercial civil disputes. In carrying out this objective we have more often than not zeroed in on the mediation process which is widely recognized as the flagship of ADR mechanisms.
What perhaps we have never highlighted is the use of mediation in the criminal justice system. The reason for this was simple; our laws prior to now made no provisions for such. However, as I write this, the much that has taken place in the last few weeks has given mediation an inroad into our criminal justice delivery.
You are perhaps abreast of the fact that Nigeria no longer runs a Prison Service system. What we now have in its place is the Nigerian Correctional Service, which will provide custodial and non-custodial services.
If the above sounds Greek to you, it simply means that not everyone who henceforth commits an offence will be liable to be sent to jail. Some offenders will be punished by other means other than incarceration. These will include Community Service, Probation, Parole, Restorative Justice and any other non-custodial measures assigned to the Correctional Service by a court of competent jurisdiction.
Aside significantly reducing the numbers of persons who may henceforth be incarcerated for offences, the new law also introduces mediation services which will enable victims of crime to enjoy restitution as well as bring closure to their trauma.
The point to note here is that every act of crime impacts three parties; these are the victims, the society in which they live and the State whose duty it is to protect the lives and properties of its citizens. Contemporary thinking is that all of these parties should play an active role in criminal justice processing with a view to attaining a more cohesive and crime-free society.
Section 43 of the Nigerian Correctional Service Act 2019 provides that the Controller-General shall provide the platform for restorative justice measures including victim-offender mediation; family group conferencing; community mediation and any other mediation activities involving victims, offenders and where applicable, community representatives.
The Act further states that restorative justice services may occur at pre-trial stage; at trial stage; during imprisonment; and post imprisonment victim-offender dialogue.
These provisions which capture the new thinking in Nigeria’s criminal justice administration simply underscores the fact that aside the decongestion of courts through non-custodial measures of sanction, society and victims of crimes must come to closure and healing through victim-offender mediation which provides an opportunity for restorative justice
Prior to now, when a criminal act is committed, the Police are called in to arrest and prosecute the offender. At trial, the case is usually between the State and the offender or the Commissioner of Police against the offender. In all of the actions that follow, little or no concerns are raised about the emotional and social impact of the crime – issues that matter more to those who suffer the trauma of the unpleasant occurrences.
What a growing number of jurisdictions have introduced is restorative justice. According to Wikipedia, a restorative justice program aims to get offenders to take responsibility for their actions, to understand the harm they have caused, to give them an opportunity to redeem themselves and to discourage them from causing further harm. For victims, its goal is to give them an active role in the process and to reduce feelings of anxiety and powerlessness.
Restorative justice is processed by professional mediators who assist victims and offenders to come to terms with the facts of the unpleasant event. The mediators assist parties to come to a closure by bringing the offenders face to face with their victims to explain their actions, offer apologies and or restitution for victim losses. The process offers victims the opportunity to narrate in their own words the emotional and physical torture they may have suffered when the crime was committed.
According to the Victim-Offenders Mediation Association, “victim-offender mediation involves a meeting between the victim and offender facilitated by a trained mediator. With the assistance of the mediator, the victim and offender begin to resolve the conflict and to construct their own approach to achieving justice in the face of their particular crime. Both are given the opportunity to express their feelings and perceptions of the offence (which often dispels misconceptions they may have had of one another before entering mediation). The meetings conclude with an attempt to reach agreement on steps the offender will take to repair the harm suffered by the victim and in other ways to “make things right”.
Participation by the victim is voluntary. The offender’s participation is usually characterized as voluntary as well, although it should be recognized that offenders may “volunteer” in order to avoid more onerous outcomes that would otherwise be imposed…’’