UNDERSTANING AND UTILIZING THE CIVIL DIMENSIONS OF EFFECTIVE CRIMINAL JUSTICE ADMINISTRATION IN NIGERIA BY HON. EHUSANI ABEL SIMPA

UNDERSTANING AND UTILIZING THE CIVIL DIMENSIONS OF EFFECTIVE CRIMINAL JUSTICE ADMINISTRATION IN NIGERIA

                                                  By

                                        Ehusani Abel Simpa[1]

 

 

"Humanity is a community of people who are innately flawed. No human being is by default free of wrong and no one can effortlessly live a blameless life without control, discipline, faith and determination. We are consistently influenced by realities within and beyond our control. The ability, capacity and capability to consistently make informed choices within the bounds of law and morality would always be measured by the level of stretch that applies to freedom, freewill and fundamental rights."

INTRODUCTION

The current justice system in Nigeria is inadequate in terms of dealing with offenders, victims and communities who directly experience the moments and the aftermath of crime. The parameters of justice are fundamentally civil and criminal. This is intrinsically undeniable. In order to appreciate the administration of justice wholistically, there is the need to understand that the civil and criminal pedestals are intertwined in more ways than is commonly understood or appreciated. Restorative Justice and the non-custodial dimensions of criminal justice have come to recalibrate the true essence of the need to the sustain the bounds of humanity in curbing criminality. Criminal Justice has to be fundamentally approached from the correctional perspective so as to achieve the ultimate goal of a better society with harmony and peaceful co-existence staying established as the universal culture.

There is a connection between civil wrongs and criminal acts. The fundamental ingredients of criminality hold inherent the twin masts of crime which moves it from an inchoate state of reality to a complete legal classification; “actus reus” and “mens rea”. There is no doubt about the position of law which is notoriously identifiable that for a criminal offence to occur there must be two main elements - the prohibited conduct and the mental element of a guilty mind or intention.[2]

“Mens rea is a Latin phrase for “guilty mind” basically, the state of mind. In a case, the prosecution must prove that the defendant had the mental element or “guilty mind” while committing a crime to secure a conviction. Let’s take an example of theft, the mens rea for this crime is the intention to deprive the rightful owner of the property. If someone was involved in an act but without the intention to commit a crime, they may not be convicted for the said crime. Actus reus is a Latin phrase for “guilty act”. Actus reus is the wrongful deed that comprises the physical components of a crime that must be coupled with mens rea for one to be held criminally liable. The “guilty act” in theft is the actual taking of or unlawful control over property without the owner’s consent.”[3]

‘Actions or inactions do trigger reactions’, cause and effect’, ‘cost follow events’, an ‘eye for an eye’ ‘reap what you sow’, all of these are examples of common sayings and societal realities that present the inevitable truth, which is, that crime and criminality do no happen in isolation. We are all influenced by our environments and the realities we get exposed to. However, our choices may be different but we must not deny the truth in the fact that when evil, malice, hate, inequality, injustice, desperation, poverty, illiteracy etc. thrive, criminality will be inevitable.

A broad understanding of all the circumstances put together that must be considered in the administration of justice is now much more undeniable. There are definitely realities that constitute the build up to wrongful deeds and physical components of a crime because a guilty mind or criminal intention doesn’t just happen all in an instant. This is why a keen consideration of some of the realistic aspects of civil/social justice must be activated so as to appropriately turn the lights on for a better understanding of true criminal justice. The society will be better protected and preserved if justice by all means appears to be and truly stays all-encompassing. The welfare of prisoners, justice for victims, rights of other persons in the society affected by criminal activities etc. all of these and more cannot be relegated the dungeon of irrelevance in the administration of criminal justice. Beyond the punitive proportions, there is the correctional also.

“Justice, inter alia, is the quality of being just, righteous, equitable or moral rightness. Most times, what is justice to one is not justice to the other. The multiple facets of justice were aptly captured in Godwin Josiah v. The State by Chukwudifu Oputa, JSC (as he then was, now of blessed memory) when he said: Justice is not a one-way traffic. It is not for the appellant alone. Justice is not even a two-way traffic. It is really three-way traffic. Justice for the appellant, accused for the heinous crime of murder, justice for the victim, the murdered man, the ‘deceased’, whose blood is crying to heaven for vengeance and finally justice, for the society whose social norms and values have been desecrated and broken by the criminal act complained of. What is justice for the offender and the state, may not be justice for the victim. For justice therefore to be justice, it must meet the needs of the offender, victim and society.”[4]

When the long arm of the law catches up with a criminal, the criminal gets to serve the jail term upon conviction. What happens, for example, to the little girl whose father and mother were brutally murdered in cold blood? What happens to her right of inheritance which may have been the underlying dispute that resulted in the loss of life? How is the convict going to be effectively reintegrated into society upon completion of the jail time.? These are questions that we must find answers to so as to get it right completely.

This is also why the retired Hon. Justice Rhodes-Vivor of the Supreme Court(as he then was) had reasons to hold in the case of UWAZURUIKE & ORS V. AG FEDERATION[5] that courts are set up for the sole purpose to do substantial justice between the parties.

Substantial justice entails justice to the Court, the accused person and the public.

RESTORATIVE JUSTICE AS A MORE EFFECTIVE APPROACH

Retributive justice clearly does society more harm than good. The consistent rise in criminality and higher rates of crime as the years flip by stays alarming. The bitterness and apathy in a country with more violent crimes cannot be ignored. As the perception of justice continues to be that of so much inefficiency and ineffective results, breakdown of law and order will inevitably continue. The money spent on building new prisons and maintaining old ones could be used to make living conditions better for people just as the facilities and gadgets at the disposal of law enforcement agents cannot in all honesty be inferior to those handled by criminals.

It is now clearly provided for, in the applicable legislation that prevention by other public officers of offences and injury to public property directly reflects in the mandate of a Judge, magistrate or any other public officer charged with the responsibility for maintaining law and order to intervene and prevent the commission of offences[6] The argument here is for a closer consideration of prevention which can be a more effective way of achieving justice. When all the parameters of civil realities are closely observed, it would be seen that so much more can be achieved through prevention. There is the common saying that “prevention is better than cure”. What makes the statement very relevant here is that indeed global best practices holds torch for an approach to criminal justice which clearly consistently moves away from the old punitive purpose.

Internet fraud, identity theft, economic and financial crimes are among the criminal offences that are increasingly associated with the proliferation of information and communication technology. These criminal activities clearly have known and identifiable cause-I say causes, not excuse or justification. The moment more moves are made in preventing these unlawful occurrences, true progress in the trajectory of justice would be invariably achieved.

In Nigeria, before we can achieve success in the dimension of prevention which would indeed activate better results, we must face the facts that daily confront us. The core values of individuals, their culture, tradition, belief and such almost always influence their choices. If we are to stop the endless going in cycles where criminals are apprehended, tried, sentenced and after they get out of jail, they even become more hardened and sophisticated to begin their next cycle of criminality, there has to be a conscious shift in the trajectory, so that we can pay more attention to the factors responsible which must be checked and corrected so as to better reduce criminal tendencies.

The explanatory memorandum of the Administration of Criminal Justice Act[7] provides; “This Act provides for the administration of criminal justice system which promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crimes and protection of the rights and interests of the suspect, the defendant and victims in Nigeria”[8]

 

The purpose of this pivotal legislation[9] is also clearly stated in Section 1(1) & (2) and this is on all fours with the explanatory memorandum.

 

In considering applicable rules of statutory interpretation, a purposive approach is always key because it employs the contextual and non-contextual sources to reiterate a meaning that accords with the purpose of the law. The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation.[10]

It is only appropriate to now deliberately flip open the known dimensions of expressions particularly regarding protection of the society from crimes and protection of the rights and interest of victims in Nigeria. The young, the vulnerable and children are chiefly in need of protection because they constitute a large chunk of society and because they are often the known victims, who are directly and/or remotely affected by crimes in Nigeria. 

FOCUS ON CHILD RIGHTS & PROTECTION

Children are the future; they are the worst hit by all forms of crime. It is therefore important to deliberately consider the best approach towards providing an environment for them where crime will almost never be recorded or contemplated. “Escalating attacks on communities in North West Nigeria by criminal gangs, including mass kidnappings of school children remains horrible. Known in the national media as “bandits” small gangs of criminals have been increasingly menacing the North West region of Nigeria, scoring cattle, plunder and ransoms from rural farms and villagers. These gangs do not hesitate to use violence, including murder to intimidate villagers into submission. Since 2020, these criminal gangs have reportedly been involved in over 350 violent events linked to over 1,500 fatalities”[11]

Beyond the consistent dangers that children face as they get to be victims all the time, their rights must be protected, their safety guaranteed and their behavioral patterns and exposed realities must be checked.

Section 1 of the Childs Rights Act[12] provides that in every action concerning a child, whether undertaken by an individual, public or private body, institutions or service, court of law, or administrative or legislative authority, the best interest of the child shall be primary consideration.

Juvenile delinquency is one fall out of poor protection of society from crimes. When children and young people indulge in activities that are law-breaking in nature, serious questions regarding their morality, their upbringing, their welfare and what they are exposed to will surely come to the front burner. This is why when questions of custody and guardianship must be determined, it is important to holistically consider what is best for children, their upkeep and the environment in which they are raised.

 

Child Offenders cannot be held accountable in the same way adults can be, this is why where a child is alleged to have committed an offence, the provisions of the Child Rights Act shall apply.[13] It is no doubt borne out of the realization that by reason of age and countless circumstances beyond the control, mental capability or understanding of a child, there is a limit to how much blame or punishment they should undergo. A better approach will therefore be to ensure that every child is better protected in all the possible dimensions so as to prevent any form of criminal tendency or exposure. With the understanding, for example, that the education, maintenance and upkeep of a child are serious and sensitive matters which should not be hamstrung by technicalities. What is best for the child should be the paramount consideration of the court,[14] whenever questions must be answered regarding the life and realities of a child, it will not be out of place to consider the ultimate goal of ensuring that the minutest exposure or tendency towards criminality gets eradicated. 

“Where in any case the defendant in respect of whom the court makes and order requiring that a recognizance be entered into is a child, the child shall not execute the recognizance but the court shall require a parent, legal guardian or other fit person with or without sureties, to enter into a recognizance that the child shall do what is required under the court’s order”[15] This provision of statute makes a case for a better approach towards the future of the society.

IMPLICATIONS OF INEQUALITY, SEXUAL AND GENDER BASED INJUSTICE

Land Disputes, rights to acquire property and other forms of civil litigation truly have close connecting variables to crime and as such the administration of criminal justice will only be totally effective when these variables are strategically examined and restructured.

Violent crimes such as armed robbery, kidnapping, rape and gang-related crimes are not to be considered in isolation. Land disputes, for instance, are widespread and could assume dangerous criminal dimensions if not quickly handled within the family.[16] This is why the recognition and regulating of traditional crime fighting structures must be recognized. Family courts and customary courts have significant roles to play in the crime fighting progression because people almost always take laws into their hands to perpetrate heinous crimes when so many civil rights have been denied and civil wrongs appear to be condoned and permissible.

It is argued that the depleting security situation in the North-western part of Nigeria grew out of land disputes driven by environmental degradation, population growth and government corruption over land rights[17]

In the Federal Capital Territory, a very large number of civil cases that fill the dockets of courts are land disputes/property related. The alarmingly rising rate of:  Criminal trespass to land, criminal breach of trust, fraudulent misrepresentation and other property related criminal activities vividly the importance of a holistic approach in appreciating the interconnectivity of civil litigation and criminal litigation which would ultimately reveal that, for example, the effective resolution of land disputes, recognition of land ownership rights, inheritance and such would go a long way in preventing other attendant criminal activities.

 

Discrimination and other social stratifications must be considered deeply so as to also understand the factors that negatively affect children who grow to be young persons and ultimately adults. One tiny implication of discrimination can snowball into levels of criminality that cannot be checked when they get to be full blown. One of the fundamental reasons why equity and fairness remain intrinsic to substantial justice is because if there is no end to moral injustice, then there will be no end to criminality. It is with this understanding, in conjunction with other facts, that the Supreme court held that; “No matter the circumstances of the birth of a female child, she is entitled to an inheritance from her late father’s estate. Consequently, the Igbo customary law which disentitles a female child from partaking in her deceased father’s estate is in breach of section 42(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, a fundamental rights provision guaranteed to every Nigerian. The said discriminatory customary law is void as it conflicts with Section 42(1) and (2) of the Constitution.[18]

Alkali Ibrahim Ahmed[19] identified illiteracy, poverty, culture and values, discrimination in labor among others as factors militating against women access to justice. With emphasis on the need for a structural change which must be multi-dimensional in nature, and that concrete steps to change the social structure must include mass organization to effectively break the bridge to class division.

Rape victims need to have complete justice. Beyond the satisfaction of seeing their assailants sent to jail, there ought to be some monetary compensation in order to restore some dignity to them. Cost of therapy and other treatments should be mandatorily paid by convicts so as to deter and truly prevent future occurrence.

The position of law as reiterated by the Supreme Court has put a fundamental tool in the workings of justice. Another important dimension reflected in the existing legislation is the provision that “a woman who has contracted a valid marriage shall have in her own name against all persons, including the husband of the marriage, the same remedies and redress by way of criminal proceedings for the protection and security of her person or her own separate property as if such property belonged to her as an unmarried woman.”[20] When rights are clearly defined and individuals, regardless of gender have true opportunities to ventilate grievances and exercise rights, justice is served and the society is safer.

 

WE ARE ALL VICTIMS

Aged parents, spouse(s), children, families, communities are often the victims of crimes perpetrated by adults. Even for repentant terrorists, bandits, kidnappers and perpetrators of other heinous criminal activities, restitution and payment of compensation to victims will truly put justice on a realistic pedestal. One of the very terrifying and baffling realities to grapple with is the understanding that the rapists, the killers, the kidnappers, the bandits, the terrorists and all other criminals, ultimately are still human beings who often are either victims of their own default or circumstances beyond their control. While I humbly argue that convicted criminals should face the full wrath of the law, my focus here is on the victims. When in the course of administration of criminal justice, all the key players have diligently ensured that prosecution is successful and punishment is duly served, who takes care of the little girl who was raped and is now in a situation known as “a child raising a child”, what happens to communities ravished and impoverished by the activities of bandits? Painfully, we hear of rehabilitation and reintegration of repentant terrorists. What happens to a young man who witnessed the brutal killing of several friends and family members, only to see the same set of terrorists getting government aid and support. That’s devastating and can sure make the young man recalibrate his lifestyle. My argument here is this. While we push for restorative justice, a dangerous norm should not be allowed. It must not be better rewarding to indulge in criminality than to be law abiding.

Compensation to persons injured by offence and payment in defraying expenses incurred on medical treatment of a victim injured by the convict in connection with the offence. This is one important aspect of true justice. To ensure that convicts make restitution or pay compensation to victims of crime[21] is captured in the existing legislation on criminal justice administration. A step in the right direction would therefore mean that no stone be left unturned in ensuring that adequate compensation, rehabilitation and true recovery is made possible for victims.

Whereas in the case of C&C CONST. CO. LTD. V. OKHAI[22], the dimension of pain, suffering, hurt and emotional trauma had judicial consideration, the clear evaluation of all facts and deep reflection of all the appropriate constraints led to the decision that indeed, no principle can be laid down upon which damages for pain and suffering can be awarded in terms of quantum, still such damages were held to be susceptible to approximated monetary evaluation by the court. The award is usually generous although not excessively high or grossly low. Ultimately and for the best part, the court decided that “where pain is claimed as an element of damages the impossibility of definitely measuring the damages by a money standard is no ground for denying pecuniary relief.”

When a person causes the arrest, or arrest and charge of a defendant or defendants and it appears to the court that there was no sufficient ground for causing the arrest or that the accusation is false, vexatious or frivolous, reasonable compensation to the defendant or defendants arrested and charged should be paid.[23] This is because false accusations, frivolous allegations or vexatious arrests and trials can have life-long derogatory implications on the victims and/or their family. When true justice does not flow for a defendant who has been falsely accused, the stigmatization, loss of credibility, loss of job/job opportunities and loss of good standing/reputation in the society can become triggers for other criminal activities. It will be appropriate to have more public apologies documented, published in the news media and social media platforms. There is no justice in parading suspects or defendants, making them go through the pain of public disdain through media trials and castigations only to quietly release them when the court finds that their arrest and charge was out of malice, frivolous, vexatious and out of false accusation.

I am in total harmony with the argument which posits that the general aims of sentences include the following; keeping offenders away from the society, deterrence- to reduce Crime, prevent reoffending, reform and rehabilitation of offenders, protection of the public, retribution-which is punishment inflicted as revenge for doing wrong or committing crime, reparation-which includes compensation, reparation, repayment, atonement, etc., by the offender to those affected by the Crime, denunciation-which reflects society’s abhorrence of the crime.[24]

With the understanding of these aims, there is now therefore no more justification for the continued delay in adopting more effective measures that are actually result-oriented.

Community sentence or alternative sentencing or non-custodial sentence encapsulates alternatives with which the courts hand down punishments to convicts. The fiery furnace of capital punishments often end up burning the individual completely which could in the end result in a more detrimental outcome for the immediate victims and the society at large. Non-custodial sentences being sanctions that do not require the convict or offender to serve a prison term, by their design serve the dual purpose of not just punishing the offender but helping the offender understand the need to be a better person. This ultimately redefines the parameters of substantial justice because the society would be better for it in the long run. Imprisonment can no doubt open up channels of retribution as confinement in proper and appropriate facilities remain the generally known ways of punishing offenders.

Service to the community by offenders is kind of non-custodial sentence which intrinsically serves as a direct indication of the ultimate goal of criminal justice-for the good of one and all. The society or community, both immediate and the larger community remain the core beneficiary of an effective justice system Dimensions of non-custodial sentences are replete in the existing law on administration of criminal justice in Nigeria. “The court may with or without conditions, sentence a convict to perform specified service in his community or such community or place as the court may direct.”[25] Although the option is open to limited levels of criminal offences, it adds color to this canvass where I am painting a picture to display clear indications of how these civil realities must always be recognized as they cannot be separated from criminal justice.

CONCLUSION

This article essentially opened up channels of understanding to the points raised in favor of a holistic approach toward administration of criminal justice. That the consequence or outcome of civil wrongs, civil disobedience and indeed civil litigation in so many cases are almost always connected to recorded criminal activities cannot be swept away. I am of the humble opinion that the workings of civil justice should be deliberately factored in when the broader spectrum of criminal justice is being discussed and progressively considered.

Objectively, it is an empirical reality that laws, statutes, rules and instructions are made to guide human conduct appropriately. When we begin to ask ourselves questions about what we would do if faced with the exact problems, challenges, history, facts, danger, desperation or pressure which offenders, convicts and criminals had to grapple with or as some are grappling with daily, would we not all be in jail? Should those of us, who have failed in our responsibilities towards others and have not been meticulous in providing and ensuring an enabling environment for law abiding life choices, not be punished the same way the criminals are? We will indeed be better humans if we consider all other factors that are responsible for crime and criminality and pay more attention to restoration, repair, restitution etc., so that there can really be justice for all. Its one world, one earth, one humanity.

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[1] Hon. Judge, Federal Capital Territory Customary Court, Abuja <simpaabel@yahoo.com>

[2] ‘Elements of a Criminal offense’ Available at  https://lawhandbook.sa.gov.au/ch12s03.php Accessed 13 June 2022 at 4:33 PM

[3] Available at https://barefootlaw.org/legal-dictionary/actus-reus-mens-rea-3/ Accessed 13 June 2022 at 4:42PM

[4] Benson Ngozi Iwuagwu, ‘Imperative of correctional justice in Nigeria’ Available at https://guardian.ng/features/imperative-of-correctional-justice-in-nigeria/ Accessed 13^th June 2022 at 5:48 PM

[5] (2013) LPELR-20392(SC) P. 20 Para. A.

[6] Section 53 Administration of Criminal Justice Act 2015

[7] 2015

[8] Underline mine because of the focus of this article

[9] Ibid.

[10] Adedeji Adekunle SAN, Revisiting the Rules of Statutory Interpretation-Best Practices, page 4, presented at the National Judicial Institute during the Induction course for newly appointed judges and Kadis, 12 July 2021. Available at https://nji.gov.ng/wp-content/uploads/2021/12/REVISITING-THE-RULES-OF-STATUTORY-INTERPRETATION.docx Accessed 6 June 2022 at 7:03 PM

[11] The Africa Center for Strategic Studies: ‘Criminal Gangs Destabilizing Nigeria’s North West’ published 14 December 2021. Available at https://africacenter.org/spotlight/criminal-gangs-destabilizing-nigerias-north-west/ Accessed 15 June 2022 at 8:38AM

[12] 2003

[13] Part 43 Section 452 Administration of Criminal Justice Act 2015

[14] This was the decision of the Federal Capital Territory Customary Court of Appeal in the case of DR. (MRS.) CRYSTAL NWAFOR V. MR. FABIAN NWAFOR (Unreported) 24/6/2021 FCT CCA APPEAL NO. FCT/CCA/CVA/42/2018 P. 19

[15] Section 166 of the Administration of Criminal Justice Act 2015

[16] The Conversation, ‘How traditional beliefs and systems are used to fight crime in parts of Lagos’ published October 7, 2019 Premium Times Newspaper. Available online via https://www.premiumtimesng.com/features-and-interviews.html Accessed 15 June, 2022 at 8:07AM

[17] Z.B. Ibrahim: ‘Land Dispute, Population Growth Backbone for Attacks in the Northwest’

[18] UKEJE V. UKEJE [2014] 11 NWLR PT.1418 P.408, PARAS. C-E

[19] In his article ‘Women access to Justice in Nigeria: Constraints and way out’ (2010) 3 NJI L.J

[20] Section 191 of the Administration of Criminal Justice Act 2015

[21] Ibid Section 319 & 321

[22] [2003] 18 NWLR (PT. 851) Pages105-106

[23] Administration of Criminal Justice Act. Op. Cit. Section 323(1)

[24] ‘Exploring Non-Custodial Sentencing in Magistrates Courts,’ a paper presented at the 2017 Orientation Course for Newly Appointed Magistrates by Ugonna Ezekwem, National Expert on Justice Sector Reforms, UNODC

[25] Ibid. Section 460(2)