Applicability of ADR in Our Criminal Justice System.
By Ogwo Chibuike Wisdom
It’s no longer a hearsay that our court rooms are congested and the wheel of justice has been clogged by technicalities, high cost of litigation, and delay in obtaining justice. ADR( Alternative Dispute Resolution) proposes an out of court settlement of disputes that is cost effective, speedy and devoid of any cumbersome procedures.
The need for ADR as opposed to litigation has snowballed, as it’s now provided by rules of courts and the Rules of Professional Conduct 2023 that ADR mechanisms should be explored before a matter is brought before a court of law. This is evidenced in multi-door courts prevalent in Lagos and Abuja. Also some institutions optimize ADR mechanisms for any complaint brought against it.
However, Alternative Dispute Resolution is not applicable to certain types of disputes due to their sui generic nature. In other words, there are certain types of disputes which will not be settled through ADR rather through litigation. Litigation which is the settlement of disputes by a court of competent jurisdiction is considered more effective in such cases.
This paper talks about the applicability of Alternative Dispute Resolution in our criminal justice system. It seeks to look at whether the applicability of ADR is feasible or not with regards to criminal justice system.
CONCEPT OF ALTERNATIVE DISPUTE RESOLUTION (ADR):
Alternative Dispute Resolution (ADR) is simply a process of initiating alternative methods and procedures of resolving a civil or commercial dispute without resorting to litigation, which can be expensive, cumbersome, and time-consuming . One of the things to put into consideration before instituting an action in court is whether such a matter can be settled out of court ( through ADR), in some instances the trial court will recommend the exploration of ADR.
We have many ADR mechanisms prevalent in Nigeria. Section 19(d) of the Constitution of the Federal Republic of Nigeria (CFRN)1999, provides for the settlement of disputes by Arbitration, Mediation, Conciliation, Negotiation and Adjudication. This section brings us to the four major types of ADR mechanisms, which are:
However, over the years other forms of ADR mechanisms have been developed in order to cover more areas in which disputes may arise. They include the following:
• Expert Determination
• Early Neutral Evaluation.
GENERAL APPLICABILITY OF ALTERNATIVE DISPUTE RESOLUTION:
Alternative Dispute Resolution mechanisms can be applied in variety of disputes due to its low cost, speedy settlement of disputes and ability to maintain the cordial relationship between the disputing parties after resolving the disputes. Alternative Dispute Resolution can be applied in the following disputes:
• Family Disputes, which mediation is highly recommended for.
• Commercial Disputes, which Conciliation and arbitration have proven effective.
• Industrial and Labour Disputes, which Negotiation and mediation are recommended.
• Breach of trust
• Insurance Disputes
• Maritime Disputes and etcetera.
However, there are disputes where the application of ADR is restricted due to sui generic nature of those disputes and the areas of law related to it. Such cases include the followings:
• In criminal cases generally, ADR is not utilized.
• ADR cannot be used to resolve election petitions, being matters of public policy.
• In matrimonial cases, ADR cannot be used to resolve matters like the dissolution of marriage, nullity of a void marriage, and restitution of conjugal rights.
• Dispute relating to binding interpretations of the law, statute, or document. The court is the only institution that can do so.
• Cases of urgency seeking immediate reliefs like an injunction.
APPLICABILITY OF ALTERNATIVE DISPUTE RESOLUTION IN OUR CRIMINAL JUSTICE SYSTEM
Generally, the application of ADR mechanisms in our criminal justice system is highly restricted. In the case of BJ Exports & Chemical Processing Co v Kaduna Refining and Petrochemical Ltd , it was held by the Court of Appeal that arbitration and other forms of ADR are so far restricted to civil matters. According to the Court of Appeal, per Mohammed JCA: It is trite that disputes which are the subject of an arbitration agreement must be arbitrable. In other words, the agreement must not cover matters which by the law of the state are not allowed to be settled privately or by arbitration usually because this will be contrary to the public policy. Thus a criminal matter, like the allegation of fraud raised by the respondent in this case, does not admit of settlement by arbitration as was clearly stated by the Supreme Court in the case of Kano State Urban Development Board v Fanz Construction Ltd . There are many reasons for the non-applicability of ADR in our criminal justice system. One of the reasons being that criminal matters are matters of public law(Between the state and private individuals) as opposed to private law. Public law is based on public policy and public welfare and that’s why it’s said that justice is a three way thing_ justice for the victim; justice for the state and justice for the accused. The interest of the state or society can’t be subjected to whims and caprices of Alternative Dispute Resolution.
Another reason is the purpose or objective of our criminal justice system. Our criminal justice system is retributive in nature as opposed to ADR which is restorative in nature. In retribution the guilty party is meant to be paid in his own coins in accordance with the prescription of the law. In ADR which is restorative in nature parties are meant to resolve the issue amicably without any punishment. The parties are put in positions that favor their interests. The punishment are meant to serve as deterrent to the accused and the society in general.
The criminal justice system extended it tentacles by making it a crime to settle crimes out of court. This is known as compounding and concealment. sections 127, 128 and 130 of the Criminal Code. Section 127 of the Criminal Code provides that any person who asks, receives, or obtains, or agrees or attempts to receive or obtain any property or benefit of any kind for himself or any other person upon any agreement or understanding that he will compound or conceal a felony, or will abstain from, discontinue, or delay a prosecution for a felony, or will withhold any evidence thereof, is guilty of an offence and if the felony is such that a person convicted of it is liable to be sentenced to death or imprisonment for life, the offender is guilty of a felony, and is liable to imprisonment for seven years. In any other case the offender is liable to imprisonment for three years. Section 128 of the Criminal Code, on the other hand, provides that any person who, having brought, or under pretense of bringing an action against another person upon a Penal Act, law or statute in order to obtain from him a penalty for any offence committed or alleged to have been committed by him, compounds the action without the order or consent of the court in which the action is brought or is to be brought, is guilty of a misdemeanor and is liable to imprisonment for one year. Finally, section 130 of the Criminal Code stipulates that any person who, having arrested another upon a charge of an offence, willfully delays to take him before a court to be dealt with according to law, is guilty of a misdemeanor and is liable to imprisonment for two years. A combined reading of sections 127 and 128 of the Criminal Code would reveal that in the Southern States of Nigeria where the Criminal Code applies, a felony cannot be compounded.
However, there have been lapses as to restriction of the application of ADR mechanisms in our criminal Justice System. Although these mechanisms are not strictly called ADR mechanisms but they still promote the idea of ADR(Restorative Justice). Some rules of court encourage the settlement of simple offences and misdemeanor outside the court room. The position appears to be typified in the provisions of section 25 of the High Court Law of Enugu State of Nigeria which provides that in criminal cases, the court may promote reconciliation and encourage and facilitate the settlement in an amicable way, of proceedings for common assault or for any other offence not amounting to a felony and not aggravated in degree, on terms of payment of compensation or other terms approved by the court, and may thereupon order the proceedings to be stayed.
Furthermore, section 127 and 128 of the Criminal Code restricted compounding and concealment to felonies and not to simple offences and misdemeanor. Another mechanism is plea bargaining. Plea bargaining is an agreement in a criminal case between the prosecution and the defence, whereby the accused pleads ‘guilty’ as against ‘not guilty’ in return for an offer by the judge that he will minimize the sentence if the accused pleads guilty or an entirely different offer by the prosecution, for instance, dismissal of other charges. Plea bargaining has be adopted by the criminal justice of some states (an example is Lagos State). It’s also exploited by anti -corruption agencies of the government. The EFCC exploited the plea of bargaining In FRN v Cecelia Ibru and was able to recover 199 assets and N190 billion naira through the plea bargaining process.
It’s obvious that ADR mechanisms have crept into our Criminal Justice System and has been operating under a camouflage. Since the reception of ADR mechanisms in our jurisprudence there have been a positive change as matters are dispensed with haste and amicability (sic). The applicability of ADR mechanisms in our Criminal Justice System is feasible and can be applied to simple offences and misdemeanor where the victim only seeks compensation (restorative justice) and not punishment for the accused(Retributive Justice). In our Criminal Justice System cases linger on for years and in some instances without yielding any fruit( If the appellate court ordered trial de novo). It’s recommended that the legislature should relax our criminal legislations to accommodate ADR mechanisms
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