Ani Comfort Chinyere (Mrs.)

LL.B (Hons.) BL; LL.M., Ph. D

View profile: https://bit.ly/3cv6UY2

 

 

1. INTRODUCTION

The criminal justice system in Nigeria as in many other countries is ‘retributive’. It is concerned with ‘retribution’ and punishing the offender, concentrating more on the crime itself than on the people involved, which is often not in the best interests of the victim, the offender, or society in general. Our Constitution[1], law of evidence[2] and criminal procedure laws[3] protect the crime suspect. The protections offered by these laws tend to diminish the attention of the suspect, especially where he is guilty; from the fact that he or she has committed a crime, but rather focuses the suspect strictly on court trial and its accompanying aspects such as denial, not guilty plea, defences, weight of evidence, witnesses, technicalities, etc.

The natural inclination of crime suspects is to avoid punishment, therefore only in rare cases do suspects confess to the crime or plead guilty without coercion. The emphasis is on denial, even where the suspect is sorry internally for what he has done. Our current system makes sparing provisions in the statute books for such repentant suspects to make amends[4], especially for juvenile offenders.  The provisions in the statutes are hardly activated in reality. Suspects are encouraged by their lawyers to plead not guilty,[5] to conceal unfavorable evidence and to allow the prosecution to prove the guilt of the suspect beyond reasonable doubt[6]. The pre-occupation is with exculpation or with obtaining the least possible punishment. No one wants to be punished.

The recent thinking in criminal justice circles is that punishment is probably the least effective method of dealing with criminal behaviour. Retribution is now being viewed by some as archaic and out of tune with the advancement of the modern justice system[7].

In contrast to the retributive one dimensional focus on punishment, restorative justice (RJ) is based on the principle that justice is best served when there is a balanced response to the needs of citizens, the offender and victims. Restorative justice is a much better system. Restorative justice, which is rapidly gaining recognition, deals with misconducts, offences and conflict. It is also a form of rediscovery of the victim in the criminal process.  The victim, the community and the offender must be viewed as clients of the justice system, and must be involved meaningfully as co-participants in a holistic justice process.[8] Hitherto, what was practiced was a system of two rivals and opposite concerns wherein the State prosecutes and punishes, while the accused person has the right to conduct his defense. Thus the victim is entirely disregarded. Nevertheless, in recent years, more attention is being paid to the plight of the victim with the emergence of restorative justice policies aimed at ensuring greater protection for the victim.

This approach focuses on ‘restoring’ damaged relationships (between victim, offender and community) to the way they were before a crime was committed to ‘make things right as much as possible.’ It entails looking beyond retribution to find deeper solutions to restore damaged relationships. It promotes solutions to repair damage, reconcile parties involved, restore community harmony and reassure those involved.

In Nigeria, the major problem in the criminal justice system is the alarming prison congestion. It is disheartening to note also that the current case overload in the criminal justice system and the consequent over congestion of the prisons can be attributed largely to the attitude that every case must go through the whole hug of the criminal trial process. As at October, 2014, the total prison population in Nigeria stood at 57, 121. Out of this number, pretrial or remand detainees constitute 69.3%, nearly 70% of the population[9]. As at September 2015, Kirikiri Medium Security Prison with a capacity to accommodate 1,700 inmates, had a total number of 2,631 inmates. Out of this number, only 198 (7.5%) were convicted and serving their jail terms, while the remaining 2, 433 (92.5%) were awaiting trial detainees.[10]  This statistics simply points to the fact that our present mode of criminal process is in dire need of urgent reform. The multiple delays inherent in our criminal justice system are financially costly for victims and witnesses who have to miss work and also emotionally costly for victims who suffer trauma as a result of the crime and are seeking quick closure.[11]

Persons, who should have had their charges speedily and expeditiously disposed on a plea of guilty, and subsequent criminal mediation, especially when they truly and legally committed the offence charged, suffer more physical, emotional and psychological damage in the course of a protracted and almost endless trial on a plea of not guilty.[12]

It should be noted here that the usefulness and appropriateness of most restorative processes such as criminal mediation are predicated upon an assumption that the accused is guilty of the offense. Only in very rare cases should an accused who genuinely asserts, rather than merely pleads, his innocence, be brought to mediate with his alleged victim.

This paper focuses on Victim Offender Mediation (VOM) as an aspect of restorative justice. The paper surveys the origins of what we know today as victim offender mediation and highlights the benefits of victim offender mediation. The paper pin points the legal basis for restorative justice and victim offender mediation internationally and in Nigeria, and also gives practical steps for the practice of victim offender mediation.  It compares the practice of victim offender mediation with civil case mediation, bringing out the differences and similarities between the two systems. It also attempts a comparative exposition of the practice of victim offender mediation in some foreign jurisdictions and also gives an insight into the current peculiar practice of VOM in Nigeria. Finally recommendations are proffered towards an effective VOM practice in Nigeria.

 

 

2. CLARIFICATION OF CONCEPTS
   • Restorative Justice

Restorative Justice refers to a process for resolving crime that focuses on redressing the harm done to the victims, holding offenders accountable for their actions and, often also, engaging the community in the resolution of that conflict.  It reacts to crime by restoration rather than retribution.  According to Tom Cavanagh, restorative justice is a value-based approach to responding to wrong doing and conflict, with a balanced focus on the person harmed, the person causing the harm, and the affected community[13]. It focuses on transforming wrongdoing by healing the harm, particularly to relationships, that is created by harmful behavior. Walgrave sees restorative justice as “an option for doing justice after the occurrence of an offence that is primarily oriented towards repairing the individual, relational and social harm caused by that offence”[14]. Eva Achjani Zulfa considers restorative justice as a model approach which emerged in the 1960s in an effort to solve criminal cases. Unlike the approach used in conventional criminal justice system, this approach focuses on the direct participation of perpetrators, victims and society in the settlement process.[15]

Restorative justice programmes emphasise more on addressing the problems caused by a criminal conduct than trial and punishment of the offender. It is an all-inclusive problem-solving approach that ensures that the interests of major stakeholders in the crime are well addressed and protected. With restorative justice, the victim, the offender and the community all participate in the crime disposal process. Basically, the victim is compensated as much as can be reasonably achieved; the offender is effectively reintegrated back into the community of responsible citizens; and the community is restored to normalcy[16].

 

Participation of the victim and the offender is an essential part of restorative justice, which emphasizes relationship building, reconciliation and the development of agreements around a desired outcome between victim and offender. Restorative Justice Processes can be adapted to various cultural contexts and the needs of different communities.[17]

The focus for a restorative justice practice is in the answers to the following questions:

• What harms have been done?
• Who has been hurt?
• What are the needs of those affected?
• What does it take to repair the harm (put things as right as possible?) and
• Who has a responsibility or obligation to participate in making it right?[18]

 

Restorative justice applies to people of all ages but it is especially important in relation to young offenders as it provides the option of having a lasting impact on their emotional and moral development which is positive, rather than negative as it can stop the process of a young offender turning into an adult offender[19].

 

The Preamble to the Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters[20] captures the essence of restorative justice and is worth reproducing here:

 

“Recalling that there has been, worldwide, a significant growth of restorative justice initiatives,

Recognizing that those initiatives often draw upon traditional and indigenous forms of justice which view crime as fundamentally harmful to people,

Emphasizing that restorative justice is an evolving response to crime that respects the dignity and equality of each person, builds understanding, and promotes social harmony through the healing of victims, offenders and communities,

Stressing that this approach enables those affected by crime to share openly their feelings and experiences, and aims at addressing their needs,

Aware that this approach provides an opportunity for victims to obtain reparation, feel safer and seek closure; allows offenders to gain insight into the causes and effects of their behaviour and to take responsibility in a meaningful way; and enables communities to understand the underlying causes of crime, to promote community wellbeing and to prevent crime,

Noting that restorative justice gives rise to a range of measures that are flexible in their adaptation to established criminal justice systems and that complement those systems, taking into account legal, social and cultural circumstances,

Recognizing that the use of restorative justice does not prejudice the right of States to prosecute alleged offenders”

 

Varieties of restorative justice include the following processes:

1. victim/offender mediation
2. family group conferencing
3. victim offender-panels
4. victim assistance programs
5. community crime prevention programs
6. sentencing circles
7. ex-offender assistance
8. community service
9.  plea bargaining
10. school programs

Zehr[21] summarized the major differences between restorative justice and retributive justice models as reproduced below.

	Retributive	Restorative
Definition of a Crime	The breaking of rules (laws)	Harm done to a person
Aims	To punish offenders for their crimes	To restore victim, offender and community to their pre-crime status
Offender’s Role	To be determined guilty or innocent and to be punished	To make amends to victim and community; to “right the wrong”
Offenders Rights	Due process rights	Right to express concerns and to negotiate reparation
Nature of Victim	The state	The individual
Victim’s Role	Periphery; to report offence and to testify in court when required	Central; to reconcile with offender and to negotiate reparation
Victim’s Rights	None	To confront offender and to receive restitution
Community Role	None	To participate in mediation and reconciliation
Community Rights	To be protected from crime	To be involved in restoration
Court’s Role	To determine guilt and to impose a sentence	To encourage and help mediation process
Prosecutor’s Role	To represent state and to provide evidence	Administrative
Standard of Proof	Beyond a reasonable doubt	Balance of probabilities
Administrative Process	Adversarial	Negotiation/mediation
Focus	Past; determination of guilt and administration of pain	Future; search for solutions and promotion of reconciliation
Concept of Guilt	Guilt is absolute and permanent	Guilt is removable through acceptance of responsibility and reparation
Concept of Debt	paid by being punished and owed to the state	paid to victim by making reparations
Concept of Justice	“Right-rules,” tested by process and intent	“Right-relationships,” tested by the outcomes
Outcomes	Punishment	Reparation and reconciliation

 

• Mediation

Mediation is one of the ranges of alternative dispute resolution mechanisms and processes designed to assist parties in resolving their differences[22]. Mediation is the intervention of an acceptable third party who facilitates the negotiation of a solution by using reasoning, persuasion and suggestions[23]. Moore defines mediation as the intervention in a standard negotiation or conflict of an acceptable third party who has limited or no authoritative decision-making power but who assists the involved parties in voluntarily reaching a mutually acceptable settlement of issues in dispute.[24] Mediation is also known as structured negotiation, as the parties mediate with the aid of the mediator. It is a non-adversarial problem-solving process that brings in a neutral third party, the Mediator, who helps facilitate communication between disputing parties to reach a mutually beneficial resolution.[25] In mediation, the Mediator does not make decisions for the parties. He or she makes suggestions or brings up alternatives, but there is no decision-making power on the part of the Mediator. The mediation process belongs to the parties and they make the final decisions about what is best for them. They may do this with the help of their lawyers; hence, they retain complete control over the outcome and do not run the risk of having an adverse decision imposed upon them by a judge or arbitrator.

 

Mediation is not about deciding who is right or wrong, who is innocent or at fault; or is it concerned with declaring a winner and a loser. Mediation is not backward looking. The focus is not on who said or did what in the past. Instead, the goal is to find a practical solution and settlement that is acceptable to everyone involved, having regard to the different interests, needs and concerns. The goal of mediation is to reach a mutually acceptable resolution, not a reluctantly accepted ultimatum. Mediation is a less expensive, less stressful and more effective option of settling conflicts. It makes it possible for individuals who need to continue interacting with each other to settle their differences in an agreeable manner.

 

• Victim[26] Offender Mediation (VOM)

Victim offender mediation is a program in which a criminal offender and the victim of the crime meet together in the presence of a trained mediator-facilitator. During the meeting, the victim is afforded the opportunity to seek answers to questions about the crime that may have been troubling him or her, such as why the offender chose the victim’s home to burgle. The victim is also given the chance to tell the offender about how the crime has affected him or her. Often at such meetings, the offender will for the first time, understand the extent of the emotional pain caused by his or her criminal conduct. During the meeting, the offender also discusses his or her views about the crime, and this discussion will often culminate in an expression of remorse for the harm that the offender has caused.

The victim and offender then attempt to reach an agreement to redress the harm caused by the offender’s criminal conduct. The agreement may require the offender to pay restitution to the victim, to perform work for the victim, to perform community service work, and/or to participate in programs, such as a substance abuse treatment program.

3. ORIGIN OF RESTORATIVE JUSTICE AND VICTIM OFFENDER MEDIATION
   • Origin of Restorative Justice

Restorative Justice is as old as man. Societies’ restorative approaches to crime date back thousands of years. Braithwaite asserts that restorative justice has been the dominant model of criminal justice throughout most of human history for all the world people[27]. The origin of restorative justice can be ascribed to a range of religious influences, indigenous justice practices, victims’ rights movement and so on. Practices of restorative justice exist in the Maori tradition and Native American healing circles and also existed in ancient Arab, Greek, and Roman civilizations.[28]

African societies had their notions of restorative justice.  Ani Comfort had observed that while the African legal culture frowns at any improper behavior viewed as capable of being inimical to the legal norms and disrupting the social equilibrium, deities, shrines, ancestors, kinship, elders, age grade associations and the chiefs are some of the indigenous mechanisms of crime control in nearly all African societies.[29] There is a unanimous credence amongst researchers that in African indigenous communities, there is a preference for the peaceful settlement of disputes along the lines prescribed by the institutions and values of the community.[30]  Restorative practices in these societies were carried out through their traditional mediating institutions or by the individuals trying to reach a compromise by negotiation on their own.[31]

Hon. Justice Gummi supports this view by noting that by custom, all forms of conflict resolution designed to restore, strengthen and build relationship existed in traditional African societies before colonization. He further opined that the ancestors in Africa never built prisons, nor courts since punishments were designed to achieve restitution, reconciliation and harmony.[32]

Benson recognizes that restorative procedures to crime as practiced by various societies date back thousands of years: and enumerates such practices as follows:

1. In Sumer, the Code of Ur-Nammu (c. 2060 BC) required restitution for violent offenses.
2. In Babylon, the Code of Hammurabi (c. 1700 BC) prescribed restitution for property offenses.

• In Rome, the Twelve Tables (449 BC) compelled convicted thieves to pay double the value of stolen goods.

1. In Ireland, under the Brehon Laws (first recorded in the Old Irish period) compensation was the mode of justice for most crimes.
2. In Germany, tribal laws promulgated by King Clovis I (496 AD) called for restitutive sanctions for both violent and nonviolent offenses.
3. In England, the Laws of Ethelbert of Kent (c. 600 AD) included detailed restitution schedules.

• In North America, First Nations and Native American communities have had aspects of restorative justice.
• In New Zealand/Aotearoa, prior to European contact, the Maori had a well-developed system that protected individuals, social stability and the integrity of the group.

1. In Britain, Retributive justice began to replace such systems following the Norman invasion of Britain in 1066 A.D. William the Conqueror’s son, Henry I detailed offenses against the “king’s peace.” By the end of the 11th Century, crime was no longer perceived as injurious to persons, but rather was seen as an offense against the state[33].

The foundation of restorative justice can also be attributed to an array of religious inspirations.

• Christianity

Christian values find their place in Restorative Justice. Some are: peace-making; reconciliation; forgiveness; care and support for one another within a context of community; personal responsibility and accountability to one another, especially regarding wrongdoing; and restoration of the wrongdoer who is remorseful and willing to change his or her ways.[34]

The Bible[35] which is the holy book for Christians has copious provisions and injunctions on restorative justice as enumerated below:

Genesis 20:7- Now therefore restore the man his wife; for he is a prophet, and he shall pray for thee, and thou shalt live: and if thou restore her not, know thou that thou shalt surely die, thou, and all that are thine.

Property Laws- Exodus 22: 1-13 “If a man shall steal an ox, or a sheep, and kill it, or sell it; he shall restore five oxen for an ox, and four sheep for a sheep.

²If a thief be found breaking up, and be smitten that he die, there shall no blood be shed for him. ³If the sun be risen upon him, there shall be blood shed for him: for he should make full restitution; if he have nothing, then shall he be sold for his theft. ⁴If the theft be certainly found in his hand alive, whether ox or ass, or sheep; he shall restore double.

⁵If a man shall cause a field or vineyard to be eaten, and shall put in the beast, and shall feed in another man’s field; of the best of his own field, and of the best of his own vineyard, shall he make restitution.

⁶If fire break out, and catch in thorns, so that the stacks of corn, or the standing corn, or the field, be consumed therewith; he that kindled the fire shall surely make restitution.

⁷If a man shall deliver unto his neighbor money or stuff to keep, and it be stolen out of the man’s house; if the thief be found, let him pay double.  ⁸If the thief be not found, then the master of the house shall be brought unto the judges, to see whether he have put his hand unto his neighbor’s goods. ⁹For all manner of trespass, whether it be ox, for ass, for sheep, for raiment, or for any manner of lost thing, which another challengeth to be his, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double unto his neighbor.

 

Leviticus 6:4 – Then it shall be because he hath sinned, and is guilty, that he shall restore that which he took violently away, or the thing which he hath deceitfully gotten, or that which was delivered him to keep, or the lost thing which was found.

Proverbs 6:30-31- ³⁰ Men do not despise a thief, if he steal to satisfy his soul when he is hungry;³¹ But if he be found, he shall restore sevenfold; he shall give all the substance of his house.

 

3.1.2. Islam

The Qur’an and the Sunnah are replete with injunctions on restorative justice. There is the Islamic practice of Diyya and Sohland. In Diyya, the offender agrees to monetary payment to the victim, while Sohl is a negotiated reconciliation. Both practice are done in the presence of a WaliAmr (appointed guardian).[36]

 

In Islamic criminal law quisas crimes are most affected by restorative justice. They are crimes such as intentional wounding and homicide. The victims of qisas crimes retain a central role in the prosecution and sentencing of defendants.[37] The victims of qisas crimes are given a choice as to the punishment that is to be imposed. They may choose to forgive the defendant and demand no punishment at all, or they may choose to demand payment “diyya” as compensation for the crime.

The Holy Quran in the book of al-Baqarah: 178 have this to say on the subject of restorative justice:

O ye who believe the law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any forgiveness is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude. This is a concession and a mercy from God (al-Baqarah: 178)

 

• Origin of Contemporary VOM

Victim Offender Mediation (VOM) began in Canada in the mid-1970s and was then known as Victim-Offender Reconciliation Programs (VORP). The first VOM program was in 1976, in Kitchener, Ontario, where two boys destroyed private property in a drunken rampage.  Because the boys did not have prior criminal records, the Probation Officer convinced the judge that instead of punishment that would result in a criminal record, the boys should face their victims, who are the owners of the destroyed property. The judge agreed and the boys went to the homes of their victims, confessed to the crimes, and worked out restitution agreements with each household. In three months, the boys had completed their agreements and paid back all the losses. This led to the creation of the first North American victim-offender mediation/reconciliation program[38].  Though restorative justice became more secularized in the 1980s and 1990s, many of its core principles are based on Christian belief in forgiveness and healing. [39] In 1990, there were approximately 150 such programs; currently, there are more than 1, 200 programs world-wide.[40]

4. LEGAL REGIME FOR RESTORATIVE JUSTICE AND VICTIM OFFENDER MEDIATION

The legal and regulatory framework governing restorative justice, VOM and diversion[41] from prosecution can be located in international conventions, rules and principles. It can also be found in domestic legislations of many nations including Nigeria.

• International Legal Regime for Restorative Justice (The United Nations (UN))

The UN has done quite a lot in its bid to institutionalize the practice of restorative justice by its member states. It has done a lot of work in the area of restorative justice for both juvenile and adult offenders.

It started in 1986 when the UN General Assembly made the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power in 1986[42]  A few years later, in 1999, the UN Economic and Social Council, (ECOSOC) in its resolution, entitled “Development and implementation of mediation and restorative justice measures in criminal justice”,[43] requested the Commission on Crime Prevention and Criminal Justice to consider the desirability of formulating United Nations standards in the field of mediation and restorative justice. In year 2000, the General Assembly also made the Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century[44]. Also the Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, discussed restorative justice under the agenda item entitled “Offenders and Victims: Accountability and Fairness in the Justice Process”[45]. In another Resolution in July 2000, titled[46] “Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters”, the ECOSOC requested the Secretary-General to seek comments from Member States and relevant intergovernmental and non-governmental organizations, as well as institutes of the United Nations Crime Prevention and Criminal Justice Programme network, on the desirability and the means of establishing common principles on the use of restorative justice programmes in criminal matters, including the advisability of developing a new instrument for that purpose. Likewise the Group of Experts on Restorative Justice at their meeting held in Ottawa from 29^th October to 1^st November 2001 also did some work on restorative justice. These interventions mentioned above and the ones concerning juveniles are discussed below in more details.

• The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power in 1986[47]

This Declaration focuses on victims of crimes but it has great import on the diversion of the offender and grants the victims of crime a plethora of rights. It proclaims that informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.  The Declaration provides for the remedies of restitution and compensation. Paragraph 8 provides that offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependents. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights[48]. Paragraph 9 is a call on governments to review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions.[49]

• UN Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules)[50]

In a nutshell, the Tokyo Rules is a set of basic principles that promote the use of non-custodial measures, as well as minimum safeguards for persons subject to alternatives to imprisonment.  The Rules are intended to promote greater community involvement in the management of criminal justice, and to promote a sense of responsibility towards society amongst offenders.[51] Member States are to ensure a proper balance between the rights of individual offenders, the rights of victims, and the concern of society for public safety and crime prevention. In doing so, they are to develop non-custodial measures within their legal systems to provide other options, thus reducing the use of imprisonment, and to rationalize criminal justice policies, taking into account the observance of human rights, the requirements of social justice and the rehabilitation needs of the offender.[52]  The Rules consider non-custodial measures as part of the movement towards depenalization and decriminalization, instead of interfering with or delaying efforts in that direction and should be applied in accordance with the principle of minimum intervention.[53] The Rules greatly encourage dealing with offenders in the community, avoiding as far as possible resort to formal proceedings or trial by a court, in accordance with legal safeguards and the rule of law[54].

Part II of the Rules deals with pre-trial dispositions. It mandates the states where it is compatible with the legal system, to empower the police, the prosecution service or other agencies dealing with criminal cases to discharge the offender if they consider that it is not necessary to proceed with the case for the protection of society, crime prevention or the promotion of respect for the law and the rights of victims. Such decision on discharge is to be made in accordance with established criteria developed within the legal system.[55] It is considered a particularly appropriate method of dealing with juveniles, since keeping them out of the formal criminal justice process is believed to reduce the chances of them becoming more deeply involved in crime.[56] The established criteria in the legal system for discharge referred to is likely to include restorative justice measures such as VOM

• The Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century[57]

The Declaration encourages the “development of restorative justice policies, procedures and programmes that are respectful of the rights, needs and interests of victims, offenders, communities and all other parties”.[58] Where appropriate, national, regional and international action plans are to be introduced in support of victims of crime, such as mechanisms for mediation and restorative justice. Year 2002 was established as a target date for States to review their relevant practices, to develop further victim support services and awareness campaigns on the rights of victims and to consider the establishment of funds for victims, in addition to developing and implementing witness protection policies.[59]

 

• Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters[60]

The highlights of the Basic Principles on the Use of Restorative Programmes in Criminal Matters are summarized below:

• Availability and Applicability- The restorative justice programmes are to be generally available at all stages of the criminal justice process.[61] This means that it could be applied right from the police station at the time of arrest where appropriate and where the operating protocol permits.
•  Voluntary- Restorative processes should be used only with the free and voluntary consent of the parties. The parties should be able to withdraw such consent at any time during the process. Agreements should be arrived at voluntarily by the parties and contain only reasonable and proportionate obligations.  No one can be coerced to participate in restorative processes[62].
• Acknowledgement of basic facts and bar to its use as evidence in subsequent legal proceedings- Article 8 provides for a basic necessity in RJ programs, which is that all parties should normally acknowledge the basic facts of the case as a basis for participation in restorative process. It also provides that participation should not be used as evidence of admission of guilt in subsequent legal proceedings.
• Confidentiality- Discussions in restorative processes should be confidential and should not be disclosed subsequently, except with the agreement of the parties.[63]
• Disparities, Power Imbalance and Threat to Safety- Obvious disparities with respect to factors such as power imbalances and the parties’ age, maturity or intellectual capacity should be taken into consideration in referring a case to and in conducting a restorative a process. Similarly, obvious threats to any of the parties’ safety should also be considered in referring any case to and in conducting a restorative process. The views of the parties themselves about the suitability of restorative processes or outcomes should be given great deference in this consideration.[64]

Section III of the Basic Principles is on Operation of restorative justice programmes. It enjoins States to establish guidelines and standards with legislative authority that govern the use of RJ programmes. Such guidelines and standards should address:

(a) The conditions for the referral of cases to RJ programmes;

(b) The handling of cases following a restorative a process;

(c) The qualifications, training and assessment of facilitators;

(d) The administration of restorative justice programmes;

(e) Standards of competence and ethical rules governing operation of RJ

programmes.

• Facilitators-Part IV of the Basic Principles deals with the facilitators.  Principle 17 provides that facilitators should be recruited from all sections of society and should generally possess good understanding of local cultures and communities. They should be able to demonstrate sound judgement and interpersonal skills necessary to conducting restorative processes. The facilitators are to perform their duties in an impartial manner, based on the facts of the case and on the needs and wishes of the parties. They should always respect the dignity of the parties and ensure that the parties act with respect towards each other.[65]  Facilitators should be responsible for providing a safe and appropriate environment for the restorative process. They should be sensitive to any vulnerability of the parties.  It is also provided that Facilitators should receive initial training before taking up facilitation duties and should also receive in-service training. The training should aim at providing skills in conflict resolution, taking into account the particular needs of victims and offenders, at providing basic knowledge of the criminal justice system and at providing a thorough knowledge of the operation of the restorative programme in which they will do their work.[66]
• Legal Advice-The Basic Principles further provides that parties should have the right to legal advice before and after the restorative process and, where necessary, to translation and/or interpretation. Minors should, in addition, have the right to parental assistance. Before agreeing to participate in restorative processes, the parties should be fully informed of their rights, the nature of the process and the possible consequences of their decision and neither the victim nor the offender should be induced by unfair means to participate in restorative processes or outcomes.[67] Judicial discharges based on agreements arising out of restorative justice programmes should have the same status as judicial decisions or judgements and should preclude prosecution in respect of the same facts (non bis in idem).[68]  Where no agreement can be made between the parties, the case should be referred back to the criminal justice authorities and a decision as to how to proceed should be taken without delay. Lack of agreement may not be used as justification for a more severe sentence in subsequent criminal justice proceedings.[69]

 

• The UN and Other Juvenile Justice Legal Regime on Restorative Justice
  • United Nation Convention on the Rights of the Child (UNCRC)

According to Article 40.1 of the United Nations Convention on the Rights of the Child, States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in the society.

The Convention further provides that State parties are to establish measures for dealing with children alleged as, accused of, or recognized as having infringed the penal law, without resorting to judicial proceedings, as long as human rights and legal safeguards are fully respected.[70]  Article 3(1) of the Convention states that: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interest of the child shall be a primary consideration.” 

The Convention in addition, provides thus: “States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society”[71]

The Convention suggests a variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care aimed at ensuring that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.[72]

• United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules)

Rule 5 of the Beijing Rules declares that the juvenile justice system aims at emphasizing the well-being of the juvenile and also ensures that any reaction to juvenile offenders is in proportion to the circumstances of both the offenders and the offence[73].

Rule 18 sets out a large variety of disposition measures for the judicial officer to employ. These flexible measures, some of which may be combined are meant to avoid institutionalization to the greatest extent possible. They include: care, guidance and supervision orders; probation; community service orders; financial penalties, compensation and restitution; intermediate treatment and other treatment orders; orders to participate in group counseling and similar activities; orders concerning foster care, living communities or other educational settings; other relevant orders.

The combined implication of Rules 5 and 18 is that restorative justice is to be adopted in cases involving juveniles. Compensation and restitution can be ordered by the court but are best achieved when discussed and agreed in a restorative conference setting. Orders recommended by the Rules can also be made by the courts but a restorative justice setting is more relaxed and in a better position to recommend such disposition measures to be ordered by the court.

Rule 11 categorically provides for diversion of juvenile offenders. It provides for consideration to be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial by the competent authority. The police, the prosecution or other agencies dealing with juvenile cases are empowered to dispose of such cases, at their discretion, without recourse to formal hearings, in accordance with the criteria laid down for that purpose in the respective legal system and also in accordance with the principles contained in these Rules.[74] This section is simply recommending for the police, the prosecution or other agencies dealing with juvenile cases to have liberty to deal with the case without formal trial in other words, they can settle the matter “out of court”. Settlement of a criminal matter out of court basically refers to mediation.

• United Nations Rules for the Protection of Juveniles Deprived of their Liberty[75]

The Rules provide that deprivation of the liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases.  The length of the sanction should be determined by the judicial authority, without precluding the possibility of his or her early release.[76]

• The African Charter on Rights and Welfare of the Child[77]

The African Charter on the Rights and Welfare of the Child contains copious provisions that tend to discourage institutionalized treatment for child offenders, pregnant mothers and mothers of infants and young children, while promoting reformation, reintegration and social rehabilitation.  Article 4 of the African Charter on Rights and Welfare of the Child, provides that “in all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration”.

Article 17 (3) provides that the essential aim of treatment of every child during the trial and also if found guilty of infringing the penal law shall be his or her reformation, re-integration into his or her family and social rehabilitation.

Article 30 of the Charter focuses on children of imprisoned mothers. It states that States Parties are to undertake to provide special treatment to expectant mothers and to mothers of infants and young children who have been accused or found guilty of infringing the penal law and shall in particular ensure amongst other things, that a non-custodial sentence will always be first considerd when sentencing such mothers and establish and promote measures alternative to institutional confinement for the treatment of such mothers.[78] It also states that the essential aim of the penitentiary system will be the reformation, the integration of the mother to the family and social rehabilitation[79]

Though this Charter did not mention concepts like restorative justice and victim offender mediation, nevertheless, a liberal interpretation of the above mentioned provisions would certainly admit such practices. VOM is a very good vehicle for achieving reformation, integration back to family and society and also social rehabilitation of offenders, which are the values the provisions of the Charter aims to promote.

• Domestic Legal Regime
  • Child Rights Act 2003

The Child Rights Act is the latest law on the rights of the Child in Nigeria. It is largely an adaptation of the United Nations Convention on the Rights of the Child and other international Rules and Guidelines on juvenile justice. As a Federal Act, it is a comprehensive uniform law.[80]

The Act provides  that the police, prosecutor or any other person dealing with a case involving a child offender has the power to dispose of the case without resorting to formal trial by using other means of settlement and encouraging the parties involved in the case to settle[81]. This power can only be exercised if the offence involved is of a non-serious nature and[82]:

1. There is need for reconciliation; or
2. The family, the school or other institution involved has reacted or is likely to react in an appropriate or constructive manner; or
3. Where in any other circumstance, the police, prosecutor or other person deems it necessary or appropriate in the interest of the child offender and parties involved to exercise the power.

 

• The Compounding Procedure under the Erstwhile Criminal Procedure Code

Section 339 of the erstwhile Criminal Procedure Code[83] (CPC) provides for compounding of various offence by the victims of the offences. Compounding is a variant of restorative justice, which promotes victim/offender mediation. It is allowed under the CPC previously applicable in Northern Nigeria but disallowed by the Criminal Procedure Act (CPA) formerly applicable in the South. Compounding of criminal offences is the process that enables the victim decide to settle his dispute with the offender without necessarily having to go through the judicial process to obtain his remedy.[84]

Under the CPC, when the person who would otherwise be competent to compound the offence is under 18 years of age, or an idiot or a lunatic, any person competent to contract on his behalf may compound the offence.[85] The compounding of an offence under section 339 has the same effect as an acquittal of the accused.[86]

The CPC categorizes offences that can be compounded into two categories. The first category are the offences that may be compounded without the leave of the court at any time before the accused person has been convicted by the court or committed for trial to the High Court include: causing hurt, assault or criminal use of force, mischief when the only injury, loss or damage caused is injury, loss or damage to private person, criminal trespass and house  trespass, criminal breach of contract of service, enticing or taking away or taking away with a criminal intent a married woman, defamation, printing or engraving, sale of printed or engraved substance containing defamatory matter, knowing it to contain such matter, criminal intimidation, insult intended to provoke a breach of the peace.[87]

The second category mentioned are offences that may be compounded before the accused person has been convicted by the court or committed for trial only with the consent of the court which has jurisdiction to try the accused person for the offence or to commit him for trial. These offences include: grievous hurt on provocation, grievous hurt without provocation, hurt not grievous by dangerous weapon, hurt or grievous hurt by act endangering life or safety, wrongfully restraining or confining any person, unlawful compulsory labour, mischief in relation to water supply, when the only loss or damage caused is loss or damage to a private person, house trespass to commit an offence (other than theft) punishable with imprisonment and uttering words or making gestures intending to insult the modesty of a woman[88].

After a trial has been concluded, an offence cannot be compounded except with the leave of committing Magistrate where the trial has not commenced or with the leave of court trying the case where the trial has commenced and has not been concluded.[89]

Juvenile courts in the south of Nigeria including Lagos allow compounding on the grounds that  stolen items have been restored or returned to the original owner; or the victim of offence has been compensated. This is in the spirit of Section 26 Magistrate Court Law which urges the court to promote reconciliation.

• Compounding under the Economic and Financial Crime Commissions (EFCC) Act, 2004

Section 14 (2) of the EFCC Act allows the Commission to compound offences under the Act. The section provides:

Subject to the provisions of section 174 of the Constitution of the Federal Republic of Nigeria 1999 which relates to the power of the Attorney-General of the Federation to institute, continue or discontinue criminal proceedings against any persons in any court of law), the Commission may compound any offence punishable under this Act by accepting such sums of money as it thinks fit, not exceeding the amount of the maximum fine to which that person would have been liable if he had been convicted of that offence.

Practically, before the EFCC will accept any sum of money as provided above, there will certainly be negotiation or bargaining with the suspect. This is purely restorative justice in contemplation.

• Administration of Criminal Justice Act 2015

A few days to the end of former President Goodluck Jonathan’s tenure in May 2015, he signed into Law the long awaited Administration of Criminal Justice Act (ACJ Act) 2015. The ACJ Act merged the provisions of the two principal criminal procedure legislations the Criminal Procedure Act (CPA) applicable to the Southern States of Nigeria and the Criminal Procedure Code (CPC) applicable to the Northern States to become a one all-encompassing legislation.

The Act states in section 1 that the purpose of the Act is to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant, and the victim.

 

Much more than the CPA and the CPC which it has come to replace, the Act makes copious provisions on victims remedy and restorative justice.  Such provisions are discussed below.

 

• Compensation to victim of crime

Section 314 provides that notwithstanding the limit of its civil or criminal jurisdiction, a court has power in delivering its judgment to award to a victim commensurate compensation by the defendant or any other person or the State. The Court in considering the award of compensation to the victim may call for additional evidence to enable it determine the quantum of compensation to be awarded.

 

• Restitution to victim of Crime

Section 321 empowers the court to order restitution. A court after conviction may adjourn proceedings, to consider and determine sentence appropriate for each convict:

(a) in addition to or in lieu of any other penalty authorised by law, order the convict to

make restitution or pay compensation to any victim of the crime for which the offender

was convicted, or to the victim’s estate;

(b) order for the restitution or compensation for the loss or destruction of the Victim’s

property and in so doing the court may direct the convict:

(i) to return the property to the owner or to a person designated by the owner;

(ii) where the return of the property is impossible or impracticable, to pay an

amount equal to the value of the property; or

(iii) where the property to be returned is inadequate or insufficient, to pay an

amount equal to the property calculated on the basis of what is fair and just.

• Restoration of possession of immovable property

 

Section 336 (1) provides that where a defendant is convicted of an offence carried out by criminal force, and it appears to the court that by that force a victim has been dispossessed of any immovable property, the court may, if it thinks fit, order the possession of the property to be restored to the victim. The order shall not prejudice any right or interest to or in the immovable property which a victim, including the convict, may be able to establish in a civil suit.

 

4.3.3.4 Plea Bargain

Under the provision guiding plea bargain in section 270 (4) (a), the prosecutor and the defendant or his legal practitioner may only enter into an agreement in respect of the term of the plea bargain, only amongst other things, after consultation with the police responsible for the investigation of the case and the victim or his representative.

The prosecutor is also mandated in determining whether it is in the public interest to enter into a plea bargain, to weigh all relevant factors, including inter alia, the defendant’s willingness to make restitution or pay compensation to the victim where appropriate.[90]

 

The prosecution is to afford the victim or his representative the opportunity to make

representations to the prosecutor regarding –

• the content of the agreement; and
• the inclusion in the agreement of a compensation or restitution order[91].

 

The presiding Judge or Magistrate is mandated to make an order that any money, asset or property agreed to be forfeited under the plea bargain is transferred to the victim or his representative or any other person as may be appropriate or reasonably feasible.[92] The prosecutor on his part is enjoined to take reasonable steps to ensure that any money, asset or property agreed to be forfeited or returned by the offender under a plea bargain are transferred to or vested in the victim, his representative or other person lawfully entitled to it.

 

 4.3.3.5 Sentencing

One of the objectives a court has to bear in mind in determining an appropriate sentence includes inter alia, restitution, that is, the objective of compensating the victim or family of the victim of the offence.[93] Under section 311, the Court, in pronouncing sentence is to consider the some factors including the interest of the victim, the convict and the community.

 

A court may, within the proceedings or while passing judgment, order that the defendant or convict to pay a sum of money in defraying expenses incurred on medical treatment of a victim injured by the convict in connection with the offence.[94]

 

• Federal High Court Act[95]

Section 17 of the Federal High Court Act dealing on reconciliation in civil and criminal cases provides that in any proceedings in the Court, the Court may promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof. This provision will practically accommodate the practice of VOM as the Court is enjoined to encourage and facilitate amicable settlement. Such an amicable settlement as envisaged by this provision can best be achieved by the Court directing the victim and the offender to get involved in a VOM process.

 

• The Magistrates’ Courts Law of Lagos State, 2009.

Section 37 of the Magistrates Courts Law of Lagos State just like the provision of the Federal High Court Act discussed above, also directs Magistrates in Lagos State to encourage settlement in an amicable way of proceedings for common assault or for any other non-felony offences. The section provides as follows:

In criminal cases, a Magistrate may encourage the settlement in an amicable way of proceedings for common assault or for any other offence not amounting to felony and not aggravated in degree on terms of payment of compensation or other terms approved by him.

• The Criminal Law of Lagos State, 2011

The Criminal Law of Lagos State, 2011, in section 15, also provides a concrete basis for the practice of restorative justice and VOM in Lagos State. The section, while providing for punishments and other disposition measures, states in subsection (2):

Other disposition measures which may be ordered under this Law are compensation, restitution, community service orders, probation, curfew orders, binding-over orders, rehabilitation and correctional orders, victim offender mediation and other restorative justice measures. (Emphasis, mine).

When any person is convicted of an offence under the Criminal Law of Lagos State, the Court may in addition to or in lieu of any punishment which may be imposed, order any of the disposition measures stated above.[96]

This section clearly stipulates that restorative justice measures and victim offender mediation can actually be used as disposition measures in lieu of punishment for crime.

• Practice Direction on Criminal Procedure in the High Court of Lagos State[97]

Rule 1 (b) (iii) of the Practice Direction provides that the Rules under the Practice Direction shall apply to criminal cases with a view to amongst other things:

(iii) “Ensure that possibility of settlement (where appropriate) is explored before the parties go into hearing”

 

5. BENEFITS OF VICTIM OFFENDER MEDIATION (VOM)

VOM calls for criminals to be accountable for their own actions. It tries to make the wrongdoers recognize the effect that their behavior has had on themselves and on society in general. Treatment is not very effective but has a better rate of reducing recidivism (repeat crimes) than punishment[98]. VOM has plenty of benefits for the criminal justice system and all the parties concerned, viz: the offender, the victim and the community (state). Some of the benefits are chronicled below.

• Benefits for the Victim

1. VOM gives the victim the chance to confront the offender directly and receive explanations and answers to worrisome concerns. It offers the victim the opportunity to have some say in the response to the crime he or she suffered, generating options for the offender to make amends, and pointing the path toward forgiveness.
2. VOM can be a form of psychological therapy for the victim. The victim gets some release from anger, fear, and pain inflicted by the offender. Perhaps an apology from the offender to the victim.[99]
3. VOM reduces the fear of re-victimization for victim. Participation in VOM often eradicates victims’ apprehension and suspicions that their offender will victimize them again in the future.
4. Just like in civil cases, criminal mediation often saves parties money, time, anxiety and stress. In some cases, victims may gain something through engaging in the mediation process rather than an adversarial judicial proceeding that risks an uncertain result, as the parties decide and put the agreement in writing to be adopted by the court.

• The parties receive a confidential forum to air their grievances, discuss the matter thoroughly, and have a unique opportunity to design their own resolutions. Many parties fear the trial experience and the harsh consequences that may flow from it. Others may feel frustrated or overwhelmed by the complexities of the criminal justice system. Some victims may not be comfortable to testify in open court where they may be embarrassed by the facts being revealed in public. This is especially factual in cases of sexual offences.

1. VOM allows the victim chance to steer the course to an extent and have a say in the outcome. This is unlike the traditional criminal process where the victim is merely a prosecution witness.
2. Traditional criminal process usually terminates in either a conviction with a prison sentence or fine, or both. The suspect serves out his term in a prison and/or pays the fine to the government coffers, not to the victim. These do not affect the victim positively, except the mere satisfaction that “justice has been done”. However, the reverse is the case with VOM, as the victim gets a benefit from the process, such as restitution, replacement or return of stolen property, compensation and other beneficial negotiated outcomes.

 

• Benefits for the Offender

1. VOM is confidential. The offender will not be exposed to the press and the public, thereby reducing the possibility of stigma and branding that goes with criminal trials and convictions. Many offenders fear the trial experience and the harsh consequences that may flow from it.
2. VOM is held in a less formal environment in the absence of a judge, thereby removing or reducing the fear of very harsh outcome for the offender.

• In VOM, the offenders have the opportunity to ask for and receive forgiveness. The prison houses are replete with repentant offenders who wish to make it right with their victims, yet the system denies them of such opportunity.

1. VOM provides the offenders emotional and psychological release from the self-image of “offender” or “criminal” that is brought about by righting the wrong. This “release” is not typically experienced after punishment without restitution and reconciliation.[100]
2. VOM can help the offender to avoid unpalatable criminal record. Where the VOM is held at the initial stage of the criminal process, such as in the case of referral from the police, the offender will be shielded from going through the whole criminal process and the attendant labelling.

 

1. VOM leads to a softer approach in sentencing. Where an offender has confessed to the crime and VOM has taken place, it will definitely lead to a lenient attitude in sentencing. The Court instead of sentencing the offender to jail term, may in addition to the agreed terms of the VOM, give the offender a sentence such as community service, parole, caution or suspended sentence.

 

 

• Benefits for the Community (State)

1. VOM also affords community members a chance to participate in the discussion of crimes, its effects and ways of preventing future occurrence.
2. Contrary to the popular belief that the public wants more punishment for offenders, research has shown that members of the public want more punishment when they are asked about this issue in the abstract, without names and faces attached. But after crimes have been personalized, names and faces are put on the offenders, and stereotypes about “the monsters who would do things like this” are broken down in a face-to-face encounter with the offender, victims consistently state a preference for less punishment and more meaningful accountability.[101]

• VOM increases the experience of justice in the community and decreases the impacts of incarceration on the community. Imprisonment has some very negative effects on the society at large as some suspects with family and dependants get incarcerated, sometimes as a result of simple offences, their children may be deprived of basic necessities and may in turn drop out of school and tend to crime as well.  It is also a well-known fact that petty criminals sometimes get hardened and join worse criminal gangs while in prison, to perpetrate worse crimes in the society.

1. Besides the outcomes that benefit the victim directly such as compensation, restitution, apology, etc, VOM offers other disposal options other than incarceration, such as community service, for which the whole community can benefit from.

 

• Benefits for the criminal justice system

1. Courts accept VOM agreements when presented in court because amongst other benefits, such agreements help in case management and speedy disposal of cases.
2. Humanize the criminal justice process. By bringing criminal offenders together face-to-face with their victims, it becomes more difficult for the offenders to rationalize their criminal behavior. As they face the individual that they have victimized, the harm caused by their crime is also no longer an abstraction but very real.

• Research indicates that when compared to offenders who are just ordered by the court to pay compensation, offenders who participate have a higher rate of restitution completion than those who do not because they feel they were treated more fairly than what they would have experienced in court.[102] They were part of the settlement agreement and will more likely honour their obligation.

1. High user satisfaction- Research has found high levels of participant satisfaction in victim-offender mediation, conferencing, and circles.[103] As experienced in the US, virtually all victims and offenders who have participated in such programs say that they would participate again if given the choice.[104] This is a sure indication of clients’ satisfaction with the process.
2. VOM can save the judicial system considerable time, resources, and expense. Research has shown that individuals who participate in criminal mediation are less likely to re-encounter the criminal justice system.[105]
3. Besides the benefits of VOM to the parties, VOM, also offers some benefits to the prosecutors. Prosecutors sometimes encounter difficulties in their duties, such as: insufficient evidence, unpredictable witnesses, lack of information, risk of disappointing outcomes for victims, and other factor that may render a case difficult to prove at trial. With VOM, such challenges will be overcome as the suspect basically owns up to have committed the offence and is willing to make amends, there by lifting the burden from the prosecutor.
4. ARGUMENTS AGAINST VOM

Though VOM has a lot of benefits, however, there are some arguments being proffered against the practice. The arguments are stated below:

1. That it is contrary to public policy on the ground that it fails to address society’s interest in punishing and deterring the offender.

1. That an offence is distinct from a dispute and thus should not be mediated as a dispute.
2. That crime is serious wrongdoing deserving of punishment and applying dispute resolution mechanism is a “soft” approach which undermines effectiveness of criminal justice.
3. That criminal offending is traditionally viewed as largely a matter between the offender and the State and not victim and the State and that the role of the state in criminal matters differs from its role in civil matters.
4. That VOM undermines the offender’s constitutional rights such as the rights to a fair trial, right to counsel, right to be presumed innocent, right to public trial by an impartial judge, right to examine witnesses,[106] etc.

7. MODALITY FOR VICTIM OFFENDER MEDIATION
8. Who can conduct VOM?- Largely, VOM is not recommended for private mediation practitioners. They are operated by either a public agency or the private non-profit sector of the community. The mediation is conducted by a trained mediator who is also trained in VOM and appointed by the mediation agency.
9. Cases for Mediation- The offences that qualify for VOM naturally, should first of all be offences with an identifiable victims. Some offences in our laws do not have an identifiable victim who has suffered harm. The harm in such cases is presumed to have been suffered by the entire state. Example of such offences include: offences against the administration of law and justice and against public authority, offences against public order, unlawful assemblies and breaches of the peace, miscellaneous offences against public authority, etc. Obviously, such criminal matters are not appropriate for VOM. Individual jurisdictions determine which category of cases to be mediated. Most VOM programs admit minor misdemeanors. Felony cases or serious misdemeanors sometimes do not qualify for VOM, depending on the jurisdiction.  Cases involving individuals who have some form of a relationship such as family members, business associates, master and servant, neighbors are examples of groups that typically benefit from VOM. Cases involving juveniles and first offenders quite often benefit from VOM.

• Who may refer a Case for VOM?- Prosecutors, judges, magistrates, and defense lawyers may recommend cases for mediation. Judges may refer parties to mediation when they appear for trial. Victims of the offence may refer their own cases to VOM.

1. Case Screening- When a criminal matter is referred to the mediation program, the case manager performs the initial screening function. The mediation program performs the final screening function to assess whether a case is mediation-appropriate. Cases approved are scheduled for mediation. Any case eventually rejected for mediation proceeds to prosecution.
2. Participants in VOM-The parties named as the suspects in the charge sheet or information and the mediator are the key participants in the VOM .The participation of the defense counsel in the criminal mediation session is optional. It is entirely the decision of the suspect to decide. Where counsel accompanies their clients to mediation, they usually assume a more passive role in the mediation process itself as compared to their clients. On the contrary, prosecutors do not participate in the mediation session. Support persons may also participate.

 

8. THE VOM PROCESS

The VOM process is quite similar to the civil mediation process though not without some minor differences. The process may differ slightly depending on the person conducting the mediation. The stages applicable in a typical VOM mediation session are briefly described below.

• The Pre-Mediation Meetings

Before the mediation is commenced, it is necessary for the Mediator to have separate Pre-mediation meetings with the victim and the offender. Unlike the civil mediation, in VOM, a crime has been committed and it may not be safe to invite both parties to meet each other without first “softening the ground”. The major reason for the meetings is to secure their willingness to participate in the mediation. It could be on different days and venues. Before the meeting the mediator may have to call the party on the phone to fix a meeting appointment with the party.

It is better to meet first with the offender to secure his confession and willingness to participate in the process. It will be more meaningful to approach the victim with information that the offender has confessed to the crime and is willing to make amends. That way, the victim will begin to consider meeting the offender and the possible proposals to bring to the mediation. This knowledge will make the victim to receive the offer for VOM quite unlike if the victim does not know whether the offender will be aggressive and still in denial of the crime. If the mediator meets first with a victim, gains his or her consent to participate in mediation, and later discovers that the offender will not participate, the victim may feel re-victimized, having raised hopes for some resolution to the crime, only to be denied that opportunity[107].

During the meeting, the mediator introduces him or herself and tells the party what VOM is all about and asks the party. The pre-mediation meeting allows the facilitators to screen for potential problematic attitudes or misinformation that could sabotage the VOM process.

After the Mediator has secured the willingness of both parties to participate in the processs, a date is fixed for the actual VOM. On the appointed date for the meeting, the parties are expected to arrive promptly at the venue of the VOM. The stages applicable in a typical VOM session are briefly described below:

 

• Preparation

The Mediator will need to arrive early at the venue of the mediation so as to avoid a situation where the parties arrive earlier and have to wait for him or her. It is unethical for a mediator to keep parties waiting due to lateness on his or her part. Of course, such a mediator that hurries in to the mediation room will not have time to prepare well and settle down properly to do the work. On arrival at the venue, the Mediator is to check the room and the seat arrangement and the convenience of the parties.[108]

The physical environment for the mediation should reflect the seriousness of the meeting. There should always be a table or a desk for taking notes and physically separate the parties, create a visual barrier and set the mood.[109] A mediation room must be comfortable, private and quiet without distractions, and people must be able to see and hear well.  If the room does not feel private enough, if it is too cramped, or if it is uninviting, it can hinder parties’ ability to address their conflict.  The seats are to be arranged in a way that the parties and the mediator will see face to face and the mediators seating position should also give a sense of neutrality, not being too close to any of the parties as against the other. The Mediator should sit between the parties either at a round table or at the head of a rectangular table. This arrangement allows the mediator to turn to the parties and acknowledge them.  Support persons should sit near, but slightly behind, their respective spokespersons. Closer proximity to one may cause the other to generate a perception of mediator bias. It is also important that the parties are seated in identical chairs so that one party does not sit higher than the other People should be seated close enough to hear each other and observe facial and body language, yet distant enough to have comfortable space and a sense of safety from violence.[110] If tension is high and/or mediators are concerned that physical violence might erupt, parties can be seated further apart or even across the table from one another.  The lighting and the room temperature must be comfortable for the mediator and the parties.  After satisfying himself that the environment is set for mediation, the Mediator needs to settle down and go through the facts earlier submitted by the parties and also discuss with an assistant or co-mediator on proposed processes where it applies.

 

The Mediator may invite the parties to sit down and make themselves comfortable before taking his or her seat. This sends the message that the mediator has respect for the parties and where a party is late to the mediation, he or she will not have a feeling that the mediation started in his or her absence.

 

• Opening

The opening statement sets the tone for the mediation and signals a kick off. This stage consists of the initial comments, which are actually a series of small procedural negotiations. The main task is to gain the trust and acceptance of the conflicting parties, so that they begin to believe that he or she will be capable of assisting them fairly as a person on whom they can rely at all times.[111] He or she begins by welcoming the parties to the mediation, introducing himself and letting the parties introduce themselves. He or she explains the mediation process, which will involve an explanation of the different stages of the process. He establishes his impartiality, explains his role as a mediator and the confidentiality of the process.  It is at this early stage that he lays the ground rules to the parties. Such rules may be set in agreement with the parties.

The opening statement consists of the following steps:

• Welcome and Introduction of the Mediator  and Parties

1. The mediator welcomes the parties to the mediation.
2. He or she introduces him or herself as a mediator and asks the parties to do same and be

specific on how they would like to be addressed.

• Commends them for choosing to mediate.

 

• Establishment of Competence

The mediator establishes his competence by letting them know the following:

1. That he or she has practiced law or other profession for —— years
2. That he or she has undergone —-xxx—-  training in mediation, negotiation, and so on.
3. That he or she has some mediation experience at LMDC as mediator or co mediator or any other relevant experience.

 

• Establishment of Impartiality

Mediator establishes his or her impartiality by stating:

1. That he or she does not know any of the parties before now.
2. That he or she does not have any prior knowledge of the crime and its effects, except the fact as presented in the statements and the interview with the parties.

 

• Explanation of the Process and Role of Mediator

At this stage, the mediator explains the VOM process and what it is meant to achieve.

The Mediator describes the principles of restorative justice and VOM and explains VOM highlighting the advantages. The mediator also tells them or makes them understand the following:

1. That he/she is to facilitate the process by helping them to identify issues, negotiate constructively and to explore settlement alternatives.
2. That he or she is to guide them to reach an amicable resolution.

• That it is a voluntary process and without prejudice.

1. That everyone will have opportunity to speak.
2. That the goal is to find a practical solution and settlement that is acceptable to everyone

involved, having regard to the fact that there is need to make amends, offer compensation, restitution or restoration and also address other various interests, needs and concerns.

1. The different stages of VOM.

• That proposals will be heard and considered.
• That the procedure is confidential and no evidence will be gathered.

1. That the caucus is confidential and that unless they want him/her to reveal what was said to the other party, he will not do so.
2. That he or she will not make decisions for them, they will resolve the matter on their own and decide which solution is acceptable to them.
3. That they may take notes if they wish (Provide pen and paper)

• That any agreement reached will be written down and signed.
• That the agreement will be binding

 

• Ground Rules

These are the rules that will guide the mediation. The parties can agree on simple things and this creates a positive dispute resolving attitude. The mediator tells them the following:

1. Order of discussion
2. That everyone should be honest

• That one person will speak at a time.

1. That there will be no interruptions
2. That there will be no abuses or name calling
3. That they have to be as civil as possible and make effort to cooperate

• That they should try to control their anger and emotions
• That phones may be switched off or put in silence

It is a good idea for the mediator after stating the ground rules, to invite the parties to set more rules as they wish, which the parties agree upon before the mediation starts. The rational is to carry the parties along as the parties own the process in mediation and it is believed that if the parties can agree on such simple things as the rules, then they could also agree on more serious issues,

 

• Authority

It is very important that the parties that come for mediation have authority to settle. Where any of the party is representing another person or group of persons he is supposed to have been authorized to take binding decision. It is crucial for the mediator to ask whether they both have authority to settle and make binding decisions. Where any of the parties lack required authority to settle, it will greatly hinder the process as he or she cannot take any decision or make a binding concession.

 

 

• Confidentiality Agreement

The mediator throws more light on the meaning of confidentiality, and invites all the parties to read and sign the confidentiality agreement. By signing the confidentiality agreement, the parties agree that:

1. Statements made and documents produced in the mediation session or in the pre-session conference are not otherwise discoverable and not subject to discovery or any other process and are not admissible in evidence for any purpose, including impeaching credibility.
2. The notes, records, and recollections of the Case Manager or Mediator conducting the Mediation Session are confidential and protected from disclosure for all purposes.
3. The Referral Judge, Mediator or Case Manager presiding over the Mediation Session has immunity as described in the Practice Direction.

• Feedback

Mediator should not forget to ask for feedback (Are there any questions?)Where there are questions or concerns by any of the parties, such should be addressed before the process continues.

 

• Case Statement

After the Mediator’s introductory statement at the joint/plenary session, and the signing of the agreement to mediate and confidentiality agreement, the Mediator invites the individuals to discuss the incident from their perspectives.  Each party is given an opportunity to narrate what happened, share any concerns, and identify their interests or needs with regard to the matter. It is usual for the victim to narrate his own story first, stating what happened, the impact and the losses and the actions he expects the offender to take in order to assuage the pain, make amends, restitute or compensate for the harm caused. After laying out his or her own part, the offender will also be given equal opportunity to state his or her own side of the story. In so doing it is important for him or her to show remorse and a willingness to make amends. Essential issues are discussed more exhaustively and an option-building phase follows. Aided by the mediator, the parties discuss various options or ideas on how the offender can attempt to repair the harm that was done putting the victim’s proposals into consideration and how the situation could be resolved.

The Mediator will ask questions to increase understanding of the incident and harm that was caused. While the offender is offered the opportunity to talk about the crime, the victim is also allowed to ask questions and receive answers to lingering questions about the crime and the offender. He or she also makes proposals for a restitution plan for the offender to consider.

 

• The Caucus

Just like in civil mediation, the Mediator may call for a caucus. During the caucus, the ideas generated are then evaluated more critically to determine if they are acceptable and realistic solutions. The focus of the discussion in the caucus should be to generate options, carry out reality tests, couch the party on negotiation strategy and majorly develop a mutually agreeable plan to repair the harm done. For instance, returning property that was stolen, replacing what was damaged or stolen and disposed of, working for the victim to a commensurate extent, rendering a heartfelt apology, paying money as compensation, commitment towards a reformed future behavior, community service, payment of expenses incurred as a result of the harm done, e.g., transportation cost, hospital/treatment bills, bill for purchase of drugs, etc.

• Closing

Once the parties have developed and finalized their resolutions, the mediator commits their agreement to writing, which both parties sign. If all parties consent, a mediation agreement may include a requirement that counseling or treatment programs be completed by a certain date. The parties receive a copy of their mediation agreement, and the mediator retains the original agreement document.

• Similarities between VOM and Civil Case Mediation

 

	Victim Offender Mediation	Civil case Mediation
1.	Confidential (Report can be sent to the court or referral agency)	Confidential- (Report can be sent to the court if it is court referred)
2.	Voluntary	Voluntary
1.       4.	Opening statement required	Opening statement required
2.       5.	Stages- i.            Initial separate meetings ii.            Plenary iii.            Caucus iv.            Plenary v.            Closing/agreement/recommendation	Stages- i.            Plenary ii.            Caucus iii.            Plenary iv.            Closing/agreement
3.       6.	Role of mediator   i.            Render welcome and opening statement ii.            Explain the mediation process iii.            Clarify role of mediator and parties iv.            Establish ground rules v.            Create rapport vi.            Lead the victim to tell the offender about the crime’s physical, emotional, and financial impact vii.            Practice active listening skills viii.            Identify interests and needs ix.            Reframe statements x.            Question parties in open ended manner xi.            Break deadlocks xii.            Do Reality testing xiii.            Generate options xiv.            Manage ventilations xv.            Maintain good body language, eye contact, respect for the parties. xvi.            Reiterate confidentiality at caucus xvii.            Communicate proposals xviii.            Clarify agreement xix.            Ensure that parties read the agreement xx.            Explain next steps	Role of mediator   i.            Render welcome and opening statement ii.            Explain the mediation process iii.            Clarify role of mediator and parties iv.            Establish ground rules v.            Create rapport vi.            Lead the victim to tell the offender about the crime’s physical, emotional, and financial impact vii.            Practice active listening skills viii.            Identify interests and needs ix.            Reframe statements x.            Question parties in open ended manner xi.            Break deadlocks xii.            Do Reality testing xiii.            Generate options xiv.            Manage ventilations xv.            Maintain good body language, eye contact, respect for the parties. xvi.            Reiterate confidentiality at caucus xvii.            Communicate proposals xviii.            Clarify agreement xix.            Ensure that parties read the agreement xx.            Explain next steps
4.      7.	Agreement is binding	Agreement is binding

 

 

• Differences between VOM and Civil Case Mediation

 

S/No	Victim Offender Mediation	Civil case Mediation
1.	A crime has been committed	No crime has been committed, but there is a dispute
2.	The offender has confessed to committing the crime	Confessions are not necessary
3.	The terms “victim and “offender” are used	The term disputants is used to refer to the parties
5.       4.	Only used where a crime has been committed.	Mediation is used in many conflict situations such as divorce and child custody, community disputes, commercial disputes and other civil court related conflicts.
5.	A humanistic model of mediation is adopted in VOM. The mediator meets the parties separately to ascertain their willingness to take part in the VOM.  The role of the mediator is facilitating dialogue and mutual aid; scheduling separate pre-mediation sessions with each party; connecting with the parties through building rapport and trust, while not taking side and using a non-directive style of mediation that creates a safe space for dialogue.	Mediator meets the parties same day at an appointed time and venue mostly during the joint session. The role of the mediator is more of  settlement driven
6.	Mediator in the opening statement has to acknowledge the fact that a crime has been committed and that it has some impact	The opening statement is the usual statement for mediation
7.	Mediator cannot be neutral or impartial about the harm that was done, especially in situations of severe violence, yet must care equally for and support.  The mediator has to practice “balanced partiality.”	The mediator is completely neutral
8.	Mediator needs to discover why the offender committed the crime	Mediator discovers the underlying interest of the parties
9.	Mediator needs to direct the mediation in a way to restore the victim as nearly as possible to his/her position before the crime, as agreed by the parties	The mediator guides the parties to a negotiated settlement as the issues and interests dictate.
10.	Mediator must do everything possible to ensure that the victim will not be harmed in any way.	The apprehension of harm is not usual in civil mediation.
11.	Emphasis is on victim empowerment, offender accountability and restoration of losses. Offender is expected to rectify the harm he has caused. It could be by restitution, restoration, compensation, apology or through any other act that can bring a sense of repair for harm caused.	Mediation focuses heavily on reaching a settlement with less emphasis on discussing the full impact of the conflict on the disputants’ lives.
12.	Can end in a restitution agreement or non-settlement	Ends in a settlement agreement, partial settlement or non-settlement
13.	Mediator can make recommendations in a report after the VOM	Recommendations are not required

 

9. COMPARATIVE EXPLORATION OF VOM

The table below is data[112] on the distribution of VOM programs in some foreign jurisdictions. In New Zealand, VOM is available in all jurisdictions. South Africa (1) has the lowest number of VOM, followed by Italy (4), Denmark (5) and Australia (5), while Germany (348) has the highest number, followed by the US (289) and Finland (130).

S/No	Country	Number of VOM Programs
1.	Australia	5
2.	Austria	17
3.	Belgium	31
4.	Canada	26
5.	Denmark	5
6.	England	43
7.	Finland	130
8.	France	73
9.	Germany	348
10.	Italy	4
11.	New Zealand	Available in all jurisdictions
12.	Norway	44
13.	South Africa	1
14.	Sweden	10
15.	United States	289

 

• United States of America

After the first Victim Offender Reconciliation Project was initiated in Kitchener, Ontario, Canada, in 1974, it was replicated in the United States in Elkart, Indiana, in 1978.  After many years of supporting civil court mediation, with limited interest in criminal mediation, the American Bar Association (ABA) now endorses the process and recommends the use of “victim-offender mediation and dialogue” in courts throughout the United States.[113]

Some mediation  programs in the US refer cases to VOM as a diversion from prosecution, while other programs, refer cases primarily after a formal admission of guilt has been accepted by the court, with the mediation being a condition of probation (if the victim is interested). Some programs receive case referrals at both the diversion and post-adjudication levels. Most cases are referred by officials involved in the juvenile justice system, although some programs also receive referrals from the adult criminal justice system. Judges, probation officers, victim advocates, prosecutors, defense attorneys, or police can make referrals to VOM programs. [114]

In Los Angeles for instance, the program that comes closest to VOM is called the Juvenile Offender Intervention Network. The only cases that qualify for the program are those of non-violent, first-time juvenile offenders. The offenders enter a ready-made contract where they acknowledge responsibility for their acts, agree to pay restitution to their victims, maintain good school attendance, and perform community service.[115]

A US national survey of VOM programs that was conducted found that of the 116 programs that were studied, 34 percent indicated that their primary referral was at a diversion level; 28 percent, at a post-adjudication but predisposition level; and 28 percent, at a post-disposition level.

Currently, there are over 300 VOM programs throughout the United States. The programs are run by community-based agencies, churches based programs, probation and correctional departments, victim services agencies, prosecuting attorney’s offices, and other types of agencies. Their primary source of funding is foundations include. Local, State and Federal Government also take part in the funding.[116]

 

• United Kingdom

Victim-offender mediation in the UK began in earnest in the early 80s, being imported also from Canada. It coincided with the increased use of cautioning and intermediate treatment by the criminal justice system. Most referrals to restorative justice were from juvenile panels or boards seeking youth diversion, causing some criticism because restorative justice was supposed to be for the benefit of both offenders and victims.

In the late 80s the Home Office funded four pilot victim-offender mediation projects and a formal evaluation. The projects were wide-ranging, from diversion of cases before court to intervention following conviction. The evaluation found that ‘the majority of victims offered the chance of meeting their offender would like to do so’ and ‘the great majority looked back on the experience as worthwhile’. There was ‘some cause for concern, however, in a few programmes that tended to place pressure on victims to take part’ (Marshall, 1999). At that time the forerunner of today’s Mediation UK organization established practice guidelines to address such shortcomings.

One approach to victim-offender mediation unique to the UK, is indirect mediation, where the victim and offender have their comments conveyed back and forth by the mediator, without actually meeting face-to-face.[117]

 

• Australia

VOM is offered in all Australian states and territories with the exception of Victoria, South Australia and the Australian Capital Territory.[118] VOM can occur for a range of offences and only if the offender accepts responsibility and both parties agree to participate. The process provides an opportunity for victims and offenders to discuss the offence, its impact on them and discuss how the harm caused could be repaired. These processes are available for both young and adult offenders in most states and territories and generally follow the same format.[119] In Australia, VOM often takes place following sentencing, however, it can be offered at other points. In Western Australia, reparative mediation takes place post-conviction but pre-sentence. The Sentencing Act of 1995[120] requires that as part of the sentencing process, the District Court may order the preparation of a mediation report (VMR), being a report about a mediation or attempted mediation between an offender and a victim.  If the Magistrate does not order the preparation of a VMR, the parties may seek an order for a VMR from the District Court.  Victim offender mediations are conducted by the Victim Offender Mediation Unit (VMU), part of the Department of Corrective Services (DCS)[121].

Before requesting the Court to order a mediation report, a lawyer acting for an offender would contact the VMU and discuss whether the offence is a suitable one to be the subject of a VOM. While the Sentence Mention Hearings are being conducted the VMU will have an officer at the District Court in attendance.  The VMU officer is there to assist practitioners to determine whether or not a particular matter would be suitable for VOM. If it is, the presiding Commissioner can order the preparation of a mediation report and list the sentencing hearing for a time when the report will have been prepared.

The usual orders will permit counsel for the prosecution and the offender to be provided with a copy of the report as soon as it is provided to the Court, on the same basis as a pre-sentence report.

 

As a general rule in Australia, drug offences, and offences of a sexual nature are regarded as not suitable for victim offender mediation. The types of offences which tend to be suitable for victim offender mediation include:

• Robbery and aggravated robbery offences, especially where the offender desires to apologize and/or to repay some or all of the money in question.
• Fraud or stealing offences, including stealing as a servant, especially where the offender desires to apologize and/or to repay some or all of the money in question.
• Property damages offences, where the offender desires to apologise for the damage caused and/ or pay compensation.
• Burglary and aggravated burglary offences.
• Assault cases, including family violence matters (unless the parties are or were in an intimate relationship).
• Road traffic offences, whenever death or injury to persons, or damage to property, occurs.[122]

Offences which proceed to trial do not tend to be suitable for victim offender mediation.

The mediation report is confidential and is only used for the purpose of the sentencing.

 

• Peculiarity of VOM in Nigeria

Though VOM is in its rudimentary stage in Nigeria, only making its initial formal entry into the justice landscape in Nigeria, however, the writer has observed from practical experience in facilitating VOM, that there is a variant in the “Nigerian Model” of the VOM. Up till now, there is no protocol to guide the mediators on VOM, but VOM has been formally carried out under the auspices of the Lagos Multi-Door Courthouse since 2013 by trained mediators, especially during the Settlement Weeks[123]. The mediator’s apply standards obtainable in countries like Canada, United States and Australia where the practice of VOM is well established.  VOM is carried out in these climes under a precondition that the suspect/offender has confessed to having committed the crime, and is willing to make amends. This is the ideal requirement, which should be present before the VOM takes place. However, the writer discovered through practice that there are some peculiarities based perhaps on the Nigerian culture and other reasons that have made the precondition of a confession not absolutely relevant and thus dispensable in the practice of VOM in Nigeria.   These reasons are discussed below:

1. Trumped up Charges– There are some situations where the suspect is truly innocent of the charges laid against him; where the charges are based on only suspicion or outright lies by the victim. In such situation the suspect may never confess because there is nothing to confess, nevertheless he or she may wish to talk to the complainant/victim to express him or herself. The writer had mediated a couple of cases where the suspects were willing to take part in the VOM but still vehemently denied committing the alleged crime, even during the initial meeting with the Mediator. The Mediator nonetheless allowed the VOM to take place. In some of these cases, it was discovered during the VOM that the charges were purely trumped up. Those cases were eventually settled, even though there was no confession. The suspects simply made points that exonerated them. The Mediator also discovered the underlying interests in these cases which were quite different from what was reported. In addition to performing reality tests on the complainant/victim, the Mediator made them to realize that the suspect was really innocent or not culpable. In one of the cases, which were referred from a Magistrate’s Court on a charge of assault occasioning harm,[124] the complainant complained to the police that the suspect who was his tenant, injured him by giving him a blow on the head with an iron bucket. He had a picture of himself with bandages on his head, purportedly the evidence of the injury he suffered, inside the case file. The VOM was held despite the fact that the suspect did not confess. During the mediation, it was discovered that it was purely a landlord and tenant case, whereby the landlord increased the house rent, but the tenant was not able to pay and the landlord wanted to eject the tenant at all cost. During reality test, the Mediator wanted to see the scar left on the complainant’s head by the injury which was not up to two years, but there was none. At that point, it became clear to both the complainant and the mediator that there was no case of assault. The parties later settled by the suspect agreeing to pay all the rent owed and to move out of the apartment on an agreed date. The complainant also agreed to withdraw the charge. This example is just one of numerous cases based on trumped up charges. The police in Nigeria, most times are not thorough in their investigation. If the police was thorough in the investigation of this case, they would have discovered that there was no injury at all. They only saw the suspect with bandages and assumed immediately that an assault had taken place without even bothering to see the actual injury or visit and interview the doctor or nurse that treated the complainant. Assuming the Mediator did not assent to mediate this matter, how would she have discovered that the case was trumped up? The parties would have been deprived of the opportunity of settling a case that was purely civil, but blown out of proportion and of course, the courts’ docket would not have been relieved.
2. Fear– The fear that if the matter is not settled at mediation, the evidence of the confession will be used against him in the court is also another reason that affects the suspect in deciding not to confess. This is borne out of ignorance of the confidentiality of the VOM. Just like civil mediation, VOM is a confidential process. With the exception of the written mediation agreement, all communications associated with the mediation screening, scheduling, and the mediation session are confidential. The mediator cannot be called as a witness in any subsequent court proceeding.

• Culture– It is the writer’s perception, though not tested empirically, that Africans and Nigerians inclusive, reason differently from Europeans when it comes to owning up to crime. An average Nigerian will hardly confess to a crime without duress. Lawyers also encourage their clients to plead not guilty to criminal charges, even when they committed the alleged offence. There were some cases where although the suspect initially did not confess or own up to the crime, the VOM nevertheless held and the suspect admitted aspects of the crime during the VOM, which led to eventual settlement and agreement. It is opined that though it is desirable to commence VOM process on the premise that the suspect has confessed to having committed the crime, however, the Nigerian Model of VOM should not make it a condition precedent in all cases. It is recommended that where both parties consent to have the VOM, the fact that the suspect has not confessed should not foreclose the opportunity of attempting the VOM after all, the parties still have the opportunity of going back to court in the event that settlement fails.

 

10. RECOMMENDATIONS

 

2011. There is very scanty mention of VOM in our law. Lagos State has taken the lead in this regard as showcased in the Lagos State Criminal Law, 2011. Most of the other provisions in our laws are not direct but can be inferred by liberal interpretation. There is need for an indebt legislation and Protocol/ guidelines for VOM to be enacted to provide and delineate the scope and practice of VOM. Such guidelines and standards are recommended by the UN Basic Principles on the Use of Restorative Justice Programs in Criminal Matters; they include: the conditions for the referral of cases to VOM; the handling of cases following a restorative process; the qualifications, training and assessment of facilitators; the administration of the VOM and standards of competence and ethical rules governing operation of VOM.
2012. The Nigerian Model of VOM should not make it a condition precedent in all cases that the suspect must have confessed to having committed the crime, before VOM is held. Where both parties consent to have the VOM, and the referral officer and Mediator after considering the facts of the case, thinks that there is likelihood of settlement, the fact that the suspect has not confessed should not foreclose the opportunity of attempting the VOM.

 

• VOM usually handles less serious crimes such as crimes involving juveniles, misdemeanours. Many restorative justice programs outside Nigeria have started extending VOM to serious and violent crimes, including homicide, sexual offences, vehicular homicide and armed robbery.[125] For the Nigerian VOM, the cases that qualify for VOM should not be limited to only simple offences and misdemeanours. Felonies except armed robbery, sexual offences, kidnapping, terrorism, drug offences, human trafficking and corruption, should be subject to VOM. Even murder should not be excluded from VOM. Rather, qualification for mediation of serious offences except the ones enumerated above, should depend on the extenuating circumstances of the case. These are issues that should be well delineated by the protocol to be developed.

1. Presently, the Prison Fellowship of Nigeria (PFN) in collaboration with the Lagos State Ministry of Justice has initiated plans to set up structured VOM services in Lagos State. Such laudable endeavor deserves support from foreign and local development agencies. Other states in Nigeria need to amend their criminal laws to incorporate the practice of VOM, as Lagos State has done.
2. It is important to have massive enlightenment campaigns on the potentials and benefits of restorative justice and victim offender mediation. All stakeholders in the criminal justice, namely, the law enforcement agencies, the judicial officers, lawyers, suspects and the general public need to be sensitized to embrace the practice of VOM. This campaign could be led by the office of the Attorney- General, the prisons, police, the NBA, the NGOs and the media. PFN has recently embarked on such campaign with sensitization workshops held for prison officers, police and lawyers.  Other organizations should emulate this gesture.
3. There is need to train mediators and other interested persons in VOM. Most practicing mediators in Nigeria presently are only knowledgeable in mediating civil matters and not versed in VOM. Such mediators need to acquire skills in VOM if they are to practice in that specialized area. Practicing mediators of the Citizen Mediation Centres, and the Multi-Door Courthouses especially in Lagos State need to be trained in VOM as they will definitely be involved in mediating criminal matters when the practice of VOM soon becomes full blown.

 

 

11. CONCLUSION

 Restorative justice offers a structure for understanding and reacting to crime and victimization that is very different from the offender-driven focus, retributive justice.  Restorative justice is concerned with healing the wounded victim financially, emotionally, and socially. It is about communication, confrontation, accountability, healing, compensation, restoration and restitution. It considers crime largely as an infraction against people within communities, contrary to the more abstract legal explanation of crime as harm against the State.

 

The retribution model of criminal justice has over time proved to be a slow, costly and apparently ineffective way of dealing with crime in Nigerian and beyond. VOM, an offspring of restorative justice, which is taking firm roots in modern criminal process in many countries, is a clear alternative to retribution, as it is imbued with numerous benefits for all the stakeholders in the criminal process.  A victim offender mediation program can serve as an essential component in a comprehensive corrections system by holding the offender accountable for the harm caused by his or her criminal behaviour. It also helps to avoid the high human and economic costs of avoidable incarceration.

 

Not every matter has to go through the whole criminal process spectrum. Victim-offender mediation is being advocated as an option and not a replacement of the usual criminal process.

Restorative justice, through the application of VOM initiative is guaranteed to restore public confidence in the country’s justice sector.

• LL.B. (Hons.); BL; LL.M. (UNN), Ph. D. (Lagos), Senior Research Fellow; pioneer HoD Alternative Dispute Resolution Department, Nigerian Institute of Advanced Legal Studies (NIALS); former Head of Department and Coordinator, Akinola Aguda School of Post Graduate Studies, NIALS. E. Mail: [email protected].

 

FOOTNOTES:

[1] Constitution of the Federal Republic of Nigeria Promulgation Act, 1999, Cap. C 23 Laws of the Federal  m

   Republic of Nigeria, 2004 as amended.

[2] Evidence Act, 2011.

              [3] See the Administration of Criminal Justice Act, 2015 which replaced the Criminal Procedure Act, (Cap. C. 41

Laws of the Federal Republic of Nigeria, 2004) and the Criminal Procedure Code (Initially enacted as Cap. 30

Laws of Northern Nigeria, 1963.

[4] Sections 270 (4) (a) 311, 314, 321 and 336 (1) of the Administration of Criminal Justice Act, 2015 are on

restorative justice.

[5] Section 271 of the Administration of Criminal Justice Act 2015, provides as follows:

“The defendant to be tried on a charge or information shall be placed before the court unfettered unless the court sees cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and called upon to plead instantly where the person is entitled to service of the information, he objects to the non-service and where the court finds that he has not be been duly served”.

[6] Section 135 (1) of the 2011 Evidence Act provides thus: “If the commission of a crime by a party to any

    proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable

   doubt”.

[7] Austen Brauker, “Crime: The Circle Of Punishment, Treatment And Prevention” Available at: http://ezinearticles.com/?Crime:-The-Circle-Of-Punishment,-Treatment-And-Prevention&id=5114015. Accessed on 5/7/2015.

[8] Van Ness “New Wine in Old wineskins: Four Challenges of Restorative justice” Criminal                Law Forum 4 (1993): 251-76

[9] International Center for Prison Studies, available at: http://www.prisonstudies.org/country/nigeria. Accessed on  12/1/2015

[10] Data was sourced by the writer from the office of the Comptroller of Kirikiri Medium Security Prison during

a visit on 23/9/2015.

[11] See Ric Simmons, “Private Criminal Justice” available at: works.bepress.com/context/ric_simmons/article/1000/…/viewcontent, Accessed on 23/5/2015

[12] Odoh Ben, “Creative Approaches to Crime: The Case for Alternative Dispute Resolution (ADR) in the Magistracy in Nigeria” Uruchi Journal of Law, Policy and Globalization, Vol. 36, 2015, p.6.

[13]Available at: http://www.evangelizationstation.com/htm_html/moral%20theology/Death%20Penalty/restorative_justice_and_the_comm.htm. Accessed on 23/5/2015

[14] Walgrave, Lode, Restorative Justice, Self-interest and Responsible Citizenship, (Cullompton: Willan Publishing, 2008),p. 21

[15]  Eva Achjani Zulfa Restorative Justice in Indonesia: Traditional Value No. 1 – Volume 2, May – August 2011 Indonesia Law Review, p. 33.

[16] Odoh Ben, “Creative Approaches to Crime: The Case for Alternative Dispute Resolution (ADR) in the Magistracy in Nigeria Uruchi” Journal of Law, Policy and Globalization, Vol.36, 2015 (Online), p. 5.

[17] Handbook of Restorative Justice Programmes (New York: United Nations, 2006), p. 6

[18] Edit Törzs, “Restorative Justice Models and Their Relevance to Conflicts in Intercultural Settings within Democratic Societies” Deliverable

3.1: Report on restorative justice models, p. 6. Available at: http://www.alternativeproject.eu/assets/upload/Deliverable_3.1_Report_on_RJ_models.pdf

[19] Melia, Manuel Cancio, “Victim Behavior and Offender Liability: A European Perspective”, 7 Buff. Crim. L. 

    Rev. 513 (2003-2004) pp. 513-514.

[20] The Resolution was adopted by the United Nations Economic and Social Council on July 24, 2002.

[21] Zehr, H., Changing Lenses: A New Focus for Crime and Justice, (Waterloo, Ontario: Herald Press, 1990), in Restorative Justice (John Howard Society of Alberta), 1997, p. 9, available at: http://www.johnhoward.ab.ca/pub/C26.htm

 

[22] Alternative Dispute Resolution: An ADR Prime, (American Bar Association Standing Committee on Dispute

Resolution, 3^rd ed., 1989,), pp. 1-2.

[23]Available at: http://www.unescap.org/esid/hds/pubs/2286/s6.pdf. Accessed on 12/1/2015.

[24] Christopher Moore, The Mediation Process: Practical Strategies for Resolving Conflict, (San Francisco: Jossey-Bass Publishers, 2nd ed., 1996), p. 15.

[25] FAQs about Mediation in a Dissolution of Marriage, available at: http://www.progressmediation.com/faqs/. Accessed on 3/6/2015.

[26] The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power defines a victim as any person who individually or collectively has suffered harm including physical or mental injury, emotional suffering, economic loss or substantial impairment of his fundamental rights, through acts or omissions that are in violation of criminal laws. It also includes where appropriate: The immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.

[27] Braithwaite, J. “Restorative Justice: Assessing Optimistic and Pessimistic Accounts”, in Crime and Justice, (1999) 25, p. 2.

[28] Braithwaite J. Restorative Justice and Responsive Regulation. (New York: Oxford University Press, Inc., 2002), in Cori Shaff et al, “Restorative Justice at  Colorado State” in Colarado State University, Journal of Students Affairs, Vol. 16, 2007, p. 10.

[29] Ani Comfort Chinyere, “Crime and Punishment in African Indigenous Law”, Epiphany Azinge and Animi Awah (Eds.), Legal Pluralism in Africa: A Compendium of African Customary Laws, (NIALS, 2012), p. 743.

[30] Shedrack Gaya Best, “The Methods of Conflict Resolution and Transformation”, in Shedrack Gaya Best (Ed.) Introduction to Peace and Conflict Studies in West Africa, (Ibadan: Spectrum Books Ltd. 2006), p. 93.

[31] See Coker S. A., Adeleke M. O., and Olaseni O. A, “An Appraisal of Alternative Dispute Resolution As an

Antidote to Delay of Judicial Proceedings in Nigerian Courts” in Fassy Adetokunbo Yusuf (Ed), Issues in Justice Administration in Nigeria, (Lagos: VDG Intl. Ltd., 2008), p. 106.

[32] Lawal Gummi, “The Restorative Justice and the Criminal Justice System in Africa: Nigeria, as a Case Study” noted in Felix Adewumi, “Alternative Dispute Resolution (ADR): An Antidote to Court Congestion” http://www.nigeriavillagesquare.com/articles/alternative-dispute-resolution-adr-an-antidote-to-court-congestion.html. Accessed on 12/9/2015.

[33] B. Benson, “Crime: Restitution and Retribution” (http:/ / mailer. fsu. edu/ ~bbenson/ ELibCrime. pdf), Florida State University.

[34] The History of Restorative Justice, Abbortsford Restorative Justice Association, 2010, available at:

http://www.arjaa.org/index.php?page_id=10. Accessed on 3/9/2015

[35] All Bible references are taken from the King James Version (KJV)

[36] “Islam and Restorative Justice: An Introduction, Presented by the Centre for Restorative Justice and Peacemaking”, available at:http://www.slideserve.com/mauli/islam-and-restorative-justice-an-introduction. Accessed on 3/8/2015.

[37] Susan C. Hascall, “Restorative Justice in Islam: Should Qisas be Considered a Form of Restorative Justice”, Duquesne University School of Law Research Paper No. 2012-11

 

[38] Ilyssa Weillikoff, “Victim-Offender Mediation and Violent Cimes: On the Way to Justice”, Vol 5.1: available at: Cardozojcr.com/issues/volume-5-1/note-; Shaneela Khan, “Mediation in the Criminal System: an Improved Model for Justice” Professor Madigan Final Paper Spring 2005, available at: www.restorative justice.org/…/6379 and Marty Price, VOMA Quarterly, Victim-Offender Mediation: The State of Art, (discussing the beginning of victim-offender mediation) at http://www.vorp.com/articles/art.html

[39] http://www.staunton.va.us/directory/departments-a-g/court-services/restorative-justice-program Accessed on  14/7/2015

[40] Victim Offender Mediation Association, “Learn about Victim-Offender Mediation (VOM)” Available at:

http://www.voma.org/abtvom.shtml. Accessed on 14/7/2015.

[41] Diversion is the channeling of certain cases away from the criminal justice system, usually on certain conditions. In common law systems, it may be achieved through the operation of prosecutorial discretion, but in civil law systems it may be the judicial officer who makes the decision to divert matters.

[42] See the General Assembly Resolution 40/34, 1986.

[43]ECOSOC Resolution 1999/26 of 28 July 1999

[44] ECOSOC Resolution 2001/47 of 4 December, 2000.

[45] See The Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Vienna, 10-17 April 2000: Report prepared by the Secretariat (United Nations publication, Sales No. E.00.IV.8), chap. V, sect. E.

[46] ECOSOC Resolution 2000/14 of 27 July 2000.

[47] See the General Assembly Resolution 40/34, 1986.

[48] Paragraph 10 provides that in cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a community.

[49] See Ani Comfort Chinyere, “Extending the Frontiers of Remedies for Crime Victims in Nigeria”, in (2009) 1 NJI Law Journal, p. 116.

[50] Adopted by General Assembly resolution 45/110 of 14 December 1990.

[51] Marcus Day, Alternatives to Custodial Sentencing: A Manual for the Implementation of Community Service Orders in the O.E.C.S. Available at: http://74.6.238.254/search/srpcache?ei=UTF-8&p=non+custodial+sentencing+options&xa=Nk9uAakW.xjA.qE0qN.TAw–%2C1290905265&fr=yfp-t-701. Accessed on  14/7/2015. Rule 1.1 and 1.2

[52] Rule 1.5, ibid.

[53] Rule 2 .7. & 2. 6

[54] Rule 2. 5

[55] Rule 5.

[56] Human Rights in the Administration of Justice Chapter 9:  “The Use of Non-Custodial Measures in the Administration of Justice” Available at: http://www1.umn. edu/humanrts/monitoring/adminchap9.html. Accessed on 2/12/2015.

[57] ECOSOC Resolution 2001/47 of 4 December, 2000.

[58] Declaration 28

[59] Rule 27

[60] The Resolution was adopted by the UN Economic and Social Council on July 24, 2002. See

www.pficjr.org/programs/un. Accessed on 11/4/2015

[61] Principle 6 of the Basic Principles on the Use of Restorative Justice Programs in Criminal Matters

[62] Principle 7, ibid.

[63] Principle 13, ibid

[64] Principle 9, ibid.

[65] Principle 18

[66] Principle 20.

[67] Principle 12 (a) – (c)

[68] Principle 14.

[69] Principle 15.

[70] Article 41 (3).

[71] UNCRC, Article 40.1

[72] Article 41 (4) ibid.

[73] Adopted by General Assembly resolution 40/33 of 29 November 1985

 

[74] See Rules 11  (1) and (2)

[75] General Assembly Resolution: A/RES/45/113of 14 December 1990.

[76] Rule 2.

[77] OAU Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999

[78] Article 30 (a) and (b)

[79] Section 30 (f), ibid.

[80] Presently the CRA has been promulgated into law in 15 States: Abia, Anambra, Bayelsa, Eboniyi, Ekiti, Imo, Jigawa, Kwara, Lagos, Nassarawa, Ogun, Ondo, Plateau, Rivers, Taraba. See UNICEF Factsheet on the Child’s Rights Act in Nigeria. Available at:

http://www.unicef.org/wcaro/WCARO_Nigeria_Factsheets_CRA.pdf. Accessed on 2/12/2015.

[81] Section 209.

[82] Section 209 (2) (a-c), ibid.

[83] Cap 30 Northern Nigeria Criminal Procedure Code.

[84] A. A. Adeyemi “Penological Theories and Victims Remedy in Nigeria”, in J.O. Irukwu and I.A. Umezulike (Eds.) Judicial Excellence: Essays in Honour of Hon. Justice Anthony I. Iguh. (Enugu: Snapp Press Ltd., 2004), p. 460

[85] Section 339 (1) (3) ibid

[86] Section 339 (8), ibid.

[87] See Part I of Appendix C of Cap 30

[88] See Part II of Appendix C of Cap 30

[89] Section 339 (1)( 6)

[90] Section 270 (4) (b) (ix) of the ACJ Act 2015.

[91] Section 270 (5) ibid.

[92] Section 270 (11) ibid.

[93] Section 401 (2) (g) ibid.

[94] Section 319 (c) ibid.

[95] Cap. F12, LFN 2004

[96] See section 15 (3), of the Criminal Law of Lagos State, 2011.

[97] L.S.N. NO. 1 of 2014. The Practice Direction was made by the immediate past Chief Justice of Lagos State, Hon. Justice A.A. Phillips.

[98] Austen Brauker, “Crime: The Circle of Punishment, Treatment And Prevention” Available at: http://ezinearticles.com/?Crime:-The-Circle-Of-Punishment,-Treatment-And-Prevention&id=5114015.Accessed on 4/9/2015.

[99] T United Nations Office on Drugs and Crime, Training Manual on Alternative Dispute Resolution and Restorative Justice, October 2007, p. 103.

RAINING MANUAL ON

ALTERNATIVE DISPUTE

RESOLUTION AND

RESTORATIVE JUSTICE

[100] Marty Price “Mediated Civil Compromise – A Tool for Restorative Justice”, available at: http://www.vorp.com/articles/civil.htm. Accessed on  14/7/2015

 

[101] Ibid.

[102] Victim Offender Mediation Association, “Learn about Victim-Offender Mediation (VOM)” Available at:

http://www.voma.org/abtvom.shtml. Accessed on 3/7/2015.

[103] Ibid.

[104] See, e.g. Mark S. Umbreit & Robert B. Coates, Victim Offender Mediation: An Analysis of Programs in Four States of the U.S. (1992); Jim Dignan, Repairing the Damage: An Evaluation of an Experimental Adult Reparation Scheme in Lettering, Northamptonshire (1990); Tony F. Marshall & Susan Merry, Crime and Accountability; Victim Offender Mediation in Practice (1990); Robert B. Coates & John Gehm, An Empirical Assessment in Mediations and Criminal Justice (Martin Wright & Burt Galaway eds. 1989); Linda Perry, et. al., Mediation Services: An Evaluation (1987), all cited in Marty Price, American Bar Association Endorsement of: Victim-Offender Mediation/Dialogue Programs, available at: http://www.vorp.com, accessed on 3/8/2015

[105] Jean Whyte, “How Do You Mediate a Criminal Case?” Available at

 

[106] See section 36 of the 1999 Constitution of the Federal Republic of Nigeria.

[107] Mark S. Umbreit, and Jean Greenwood, Guidelines for Victim-Sensitive Victim-Offender Mediation: Restorative Justice Through Dialogue (St. Paul Minnesota: Office for Victims of Crime, 2000), p. 9

[108] Ani Comfort Chinyere “Practical Skills in Mediation” in Epiphany Azinge and Chinyere Ani (Eds.) Principles of Negotiation and Mediation, (Lagos: NIALS, 2012).

[109] Rebecca Weinstein, Mediation in the Workplace: A Guide for Training, Practice and Administration (USA: Greenwood Publishing Group, 2001), p. 80

[110] Ibid, p. 81.

[111] Conflict Management, Available at: http://www.etu.org.za/toolbox/docs/building/conflict.html

 

[112] Data are taken from Umbreit, 1994, Wright, 1996, and the Centre National Survey of victim offender mediation programs. See Mark S. Umbreit & Jean Greenwood, National Survey of Victim-Offender Mediation Programs in the United States. Available at: http://www.mediate.com/articles/vomsurvey.cfm#1

 

[113] Mark S. Umbreit & Jean Greenwood, National Survey of Victim-Offender Mediation Programs in the United States. Available at: http://www.mediate.com/articles/vomsurvey.cfm#1

[114] Victim-Offender Mediation: A National Perspective https://www.ncjrs.gov/ovc_archives/reports/96517-gdlines_victims-sens/guide4.html

[115] Ilyssa Weillikoff, “Victim-Offender Mediation and Violent Crimes: On the Way to Justice”. Op. cit. note 38.

[116] Ibid

[117] Les Davey, “The Development of Restorative Justice in the UK: A Personal Perspective” Available at: http://www.iirp.edu/article_detail.php?article_id=Mzg4. Accessed on 12/6/2015

[118] Restorative justice in Australia, available at:

http://www.aic.gov.au/publications/current%20series/rpp/121-140/rpp127/05_restorative.html. Accessed on 12/6/2015

[119] Ibid.

[120] Section 27 of the Sentencing Act 1995, (WA) Part 3 Div 5. The Young Offenders Act 1994 makes equivalent provisions for the youths.

[121] Available at: http://www.districtcourt.wa.gov.au/V/victim_offender_mediation.aspx?uid=4586-1086-1671-3197. Accessed on 12/3/2015.

[122] Ibid.

[123] The Settlement Week is a week set aside by the Chief Judge of Lagos State for specific Courts to clear the backlog of cases through means which include referral to the LMDC for possible resolution through Mediation, Arbitration, Neutral Evaluation or any other ADR procedure. See section 31 of the LMDC Law, 2007.

[124]Under Section 171 of the Criminal Law of Lagos State, 2011, the crime is punishable with imprisonment for three years.

[125] “Victim-Offender Mediation and Violent Crimes: On the Way to Justice” Vol 5.1. Op. cit. note 38