Executive Director, Prison Fellowship Nigeria and Coordinator, Lagos State Restorative Justice Steering Committee, Benson Ngozi Iwuagwu, in this article, examines various approaches to tackling crime.
The definition of crime will depend on what prism of justice you are looking at, Retributive Criminal Justice System as we presently have or Restorative Justice System. Whilst both aim for justice in response to crime, they define crime differently, have different outcomes and resonate differently with those involved in and affected by crime.
Crime has a very terse definition in our “traditional criminal jurisprudence” as “What the law prescribes as crime”; it could be a commission or omission. A very ambivalent definition, which in no small measure, mirrors the seeming vacuity of the concept of state in criminal jurisprudence, since after the social contact. An opaque and shifty compass for justice. Yet, crime so vaguely defined, has tremendous aftermath of its commission; whether in response of the state to the criminal or, devastation on the one who took the “hit” or yet, the ripple disquiet on the community and its enterprises.
A key response to crime, its devastation and ripple effect should be justice, but justice for who? The traditional definition of crime does not give any indication of who suffers the crime and should get justice. There is a void, which attempt has been made to fill with the ‘myth of state’. Who is the state? A philosophical myth or creation, a common name for the subscribers to the social contract. In the absence of the state we would be back to the Hobbesian state of “anomie” where life is nasty, brutish and short. Certainly, no one wants that. But is the state so empowered to take away the voice of its subscribers, particularly when they have taken the hit of crime? I do not think so. Rather, we need a redefinition of “crime” to put in proper perspective who should get Justice in the aftermath of crime. Retributive Justice says the state but, Restorative Justice says those who suffered hurt or harm.
It is apposite here, in determining who should get justice, to recall the dictum of Chukwudifu Oputa JSC(as he then was, now of blessed memory) in Godwin Josiah v The State (1985) INWLR (Part II), where he said “Justice is not a one way traffic. It is not for the appellant alone. Justice is not even a two way traffic. It is really three way traffic. Justice for the appellant, accused for the heinous crime of murder, justice for the victim, the murdered man, the ‘deceased’, whose blood is crying to heaven for vengeance and finally justice, for the society whose social norms and values have been desecrated and broken by the criminal act complained of.”
Clearly, we see there are three parties affected by crime and its aftermath – offender who committed the crime, victim who took the hit and the society that is scandalized and destabilized by the crime committed.
Crime must be redefined as a true compass for justice. Our extant definition of crime has very shifty limits, which in pursuit of, no one seems to get justice, rather we have a conundrum of discontent and disquiet, not just among practitioners in the criminal justice system – judges, prosecutors and lawyers but very critically among the generality of the society, particularly the victims.
Howard Zehr in “The Little Book of Restorative Justice”, Good Books, Intercourse, PA17534, has argued that “Many feel that the western process of Justice deepens societal wounds and conflicts rather than contributing to healing or peace.” Zehr’s position is fortified by a common saying amongst us here that, “you do not go to court and comeback to remain friends.”
We must redefine crime as a compass for justice, reflecting those who must be held in the contemplation of justice in response to crime. This no doubt, will, in the words of Professor Ayodele Atsenuwa, amount to “shaking the foundations of traditional jurisprudence of the criminal justice system”. It would be worthwhile to shake the foundations, if only to get healing and proper closure for victims of crime, including the offender, who most times is a victim of socio-economic and political dysfunction.
In the context of justice being a three way traffic, a proper definition of crime, should, with due respect, give the signal of where it impacts and not just a vague philosophising. We cannot be content to have crime defined so vaguely, leaving much room for doubts, manipulations and denials. Crime is not, properly so speaking “a violation of law and the state”. Howard Zehr has argued, rightly so, that crime is more appropriately “a violation of people and relationships which creates an obligation for the offender to make good the harms caused by his crime”.
Under the traditional criminal justice definition, response to crime, usually would ask, “what laws have been broken and what is the just deserts (penalty)”.While under there storative justice people and relationships violation definition, the question would be “who has been hurt, who has the obligation to remedy the hurt”?.
A lot turns on the proper definition of crime; it dictates the parties, processes and ultimately its outcomes, which then reveals whether justice and its end have been served.
Zehr has argued that “the western legal system or criminal justice system approach to justice has some important strengths. Yet there is also a growing acknowledgement of this system’s limits and failures. Victims, offenders and community members, often feel that justice does not adequately meet their needs. Justice Professionals – Judges, Lawyers, Prosecutors… prison staff – frequently express a source of frustration as well”. This possibly explains why are nowned Criminologist and Professor of law, Professor A. A. Adeyemi in one of his studies found that, about 70 per cent of criminal cases are settled outside the formal criminal justice system. Further explaining the very low prison to population ratio in Nigeria compared to other jurisdictions. When the offender and victim come together with the support of a “facilitator” or “go between” in the community, justice is often better met and served.
At a recent justice workshop, it was acknowledged that local chiefs, Baale’s settle all manner of cases, including homicide cases, where the offender and victim come together and agree on how best justice is served, in the interest and satisfaction of all who are involved and affected by the crime committed.
We must, with due respects, faced with the challenges of prison congestion, inhuman custodial conditions, briming court dockets frustrating and long wait for trial coupled with palpable frustrations and the seeming helplessness of our extant justice system, redefine crime; to properly set the compass for justice that will lead to its true ends – responsibility and reformation of the offender, validation and healing for the victim and restoration of social equilibrium, peace and harmony in the society. We need a system of justice whose processes are collaborative and inclusive and its outcomes, restorative.
