By Amb. Hameed Ajibola Jimoh, Esq.
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ACArb. (Chartered Arbitrator), MTI Accredited Mediator, CGArb. (Global Peace and Conflict Resolution and Management Expert), FIGPCM, LPC, PC-WCM, FIMC, CMC, CMS and Notary Public for Nigeria
A visit and or appearance to a number of courts (both inferior and superior) in Nigeria or for instance, in the Federal Capital Territory-Abuja, would reveal the inadequate application of restorative justice in those courts. Take for instance, the environment and the internal parts of the courts require some cleanings, clearings and or arrangements; why are our courts interested in sentencing a convict to some terms of imprisonment in correctional centers (which is most likely to even make the convict become a more ‘hardened criminal’ or a ‘recidivist’ i.e. a person who continues to commit crimes, and seems unable to stop even after being punished) whereas the manpower of these convicts could be used to serve the conditions of those courts positively?!; whereas, the law permits the courts to sentence convicts to some terms of ‘community service’ as a form of restorative justice. Burkina Faso as a country was reported to have made a law on restorative justice for convicts to be sentenced to work on farm lands in agriculture with reduced sentence in a bid to have a positive impact on the convicts and to represent African values (according to the new criminal law in Burkina Faso, prisoners and those awaiting sentences can work in agriculture, with a month of work equivalent to a three-month reduction in sentence). Hence, this paper is also of the opinion that apart from the use of convicts to the benefits of the courts, the community service is also of an advantage of decongesting our correctional facilities throughout the detention centers. Hence this paper.
The United Nations (UN) in the year 2002, had adopted ‘the Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters’. Also, earlier than the year 2002, in the year 1986, the United Nations (UN) General Assembly adopted a resolution on ‘the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’. ‘Restorative Justice’ therefore, is defined as ‘… a system of criminal justice which focuses on the rehabilitation of offenders through reconciliation with victims and the community at large’. Restorative Justice was also defined by Howard Zehr in ‘The Little Book of Restorative Justice’ as ‘a process to involve, to the extent possible, those who have a stake in a specific offence and to collectively identify and address harms, needs and obligations, in order to heal and put things as right as possible’.
Some of the basic principles of Restorative Justice are:
i. The primary determinants of justice are the interests of the victim, the community, and the offender;
- Punitive actions do not always serve those interests best;
iii. Crime is first and foremost a violation of individual rights; next as an infraction of social relationship and social values, before lastly becoming an offence against the law and State.
Therefore, there are four basic values of Restorative Justice which are:
- Reconciliation (reunion, resolution, settlement, etc.);
- Restitution (the act of giving back to a rightful owner);
- Reintegration (recuperation, rehabilitation, etc.);
- Restoration (to put back into place).
Therefore, from the above four basic values of Restorative Justice, the main value and or purport of Restorative Justice is to ‘restore’: the offender; the victim; and the community back to their respective place they were prior to the alleged crime.
The Administration of Criminal Justice Act, 2015-herein after referred to as ACJA- has conferred the powers of suspending whatever sentence that is provided in any criminal law creating an offence for a ‘Community Service’ where the punishment for such an offence does not exceed a term of three (3) years.
Section 460 of ACJA provides thus
‘Suspended sentence and community service
460(1) Notwithstanding the provision of any other law creating an offence, where the court sees reason, the court may order that the sentence it imposed on the convict be, with or without conditions, suspended, in which case, the convict shall not be required to serve the sentence in accordance with the conditions of the suspension.
(2) The court may, with or without conditions, sentence the convict to perform specified service in his community or such community or place as the court may direct.
(3) A convict shall not be sentenced to suspended sentence or to community service for an offence involving the use of arms, offensive weapon, sexual offences or for an offence which the punishment exceeds imprisonment for a term of 3 years.
(4) The court, in exercising its power under subsection (1) or (2) of this section shall have regard to the need to:
(a) reduce congestion in prisons;
(b) rehabilitate prisoners by making them to undertake productive work; and
(c) prevent convicts who commit simple offences from mixing with hardened criminals.’. (Underlining is mine for emphasis).
Also, by section 462 of ACJA, the ‘Community Service Order’ made by the Court shall be performed for a period of not more than six months and the convict shall not work for more than five (5) hours a day. Section 461 of ACJA has mandated the establishment of a ‘Community Service Centre’ by the Chief Judge in every Judicial Division to be headed by a ‘Registrar’ who shall also be assisted by suitable personnel with the duties of supervising the implementation of the Community Service Order made by the Court (the question this paper is asking is ‘whether since the past ten (10) years that ACJA was enacted into law, whether this provision has been given its own life to be in operation- in other words, ‘IMPLEMENTATION’?!)’. Section 462(2) of ACJA enlarged the persons who could be a supervision officer as to be:
- the supervision of a supervising officer or officers or
- Non-Governmental Organizations as may be designated by the Community Service Centre. In my humble submission, the Nigerian Bar Association (NBA) as an ‘association’ is included in this list.
It is important to note the provisions of section 461(4), (5), (6), (7), (8) and (9) of ACJA on the guiding principles of the Community Service which are stated thus
‘(4) Where the court has made an order committing the convict to render community service, the community service shall be in the nature of:
(a) environmental sanitation, including cutting grasses, washing drainages, cleaning the environment and washing public places;
(b) assisting in the production of agricultural produce, construction, or mining; and
(c) any other type of service which in the opinion of the court would have a beneficial and reformative effect on the character of the convict.
(5) The community service sentence shall be performed as close as possible to the place where the convict ordinarily resides to ensure that the community can monitor his movement.
(6) Before passing a community service order, the court shall consider the circumstances, character, antecedents of the convict and other factors that may be brought to its attention by the Registrar of the Community Service Centre.
(7) A convict sentenced to community service shall not at the same time be sentenced to a term of imprisonment for the same offence, but may, in default of performing his community service diligently and to the satisfaction of the court, be sentenced to a term of imprisonment for the remaining part of his community service to which he is in default or neglect.
(8) Upon sentence to community service, a convict shall be required to produce a guarantor who shall undertake to produce the convict if the he absconds from community service.
(9) The guarantor shall be a relation of the convict or any other responsible person of adequate means or substance who shall produce the convict when required by the court, failing which the guarantor shall be liable to a fine of N100,000.00 or more as the circumstances of each case may require.’
From the above section 461 of ACJA, it would be observed that section 461(4)(b) of ACJA (supra) provides that
‘(b) assisting in the production of agricultural produce, construction, or mining; and ….’
This is similar to what Burkina Faso did by making law that a convict shall be sentenced to working on a farm land (only that the provisions under the ACJA as a Nigerian Law is much wider and encompassing that that made by Burkina Faso). This shows that Nigeria already has this provision under section 461(4)(b) (supra) since about ten (10) years ago (but it still remains strange because the provisions as to Community Service has not been implemented by the Chief Judge of either the Federal Capital Territory and or the Chief Judge of the Federal High Court of Nigeria or the President of the National Industrial Court (where applicable) and or the Chief Judge of each of the States of the Federation (where applicable)! When Burkina Faso publicized its law in this regard, everyone including Nigerian citizens where hailing that government whereas, for years past, Nigeria has made similar and even more encompassing law in the ACJA on the subject matter of ‘Community Service’ but the law lacks ‘implementation’!
Breach of Community Service Order by the Convict is not without consequences which have been provided in sections: 461(7) of ACJA (supra) and 463 of ACJA. Section 463 of ACJA, for instance, provides as follows
‘Default of convict in complying with community service order
- (1) Where at any time during the community service period, the Registrar of the Community Service Centre informs the court of the default of the convict in complying with the directives of the community service order, the court may issue a summons requiring the convict to appear before it.
(2) Where the convict fails, refuses or neglects to appear in obedience to the summons, the court may issue a warrant of arrest.
(3) Where it is proved to the satisfaction of the court that the convict has failed to comply with any of the requirements of the community service order, the court may:
(a) vary the order to suit the circumstances of the case; or
(b) impose on him a fine not exceeding N100,000.00 or cancel the order and sentence the convict to any punishment which could have been imposed in respect of the offence, but the period of community service already performed may count in the reduction of the sentence.
(4) A supervising officer shall not employ the convict for his or her personal benefit.
(5) Where a supervising officer employs the convict for his or her personal benefit, the officer is liable to a fine ofN100,000.00 or more, or such other punishment as the court considers fit.’.
Also, where the convict considers no serious punishment for his criminal act(s) by the Community Service Order of the Court (as a form of restorative justice) and returns back to commit further offence or crime, section 464 of ACJA already provides what shall be the fate of such recalcitrant person thus
‘Commission of further offence
- Where a convict has been ordered to undergo community service on conviction by an original court but has committed another offence during the period of community service, the following rules shall apply:
(a) the subsequent court may add to the sentence or impose a term of imprisonment which might have been passed by the original court and cancel the order of community service;
(b) the subsequent court may take into account the period of community service served in reduction of the term of imprisonment;
(c) where the original court is a High Court and the subsequent court is a subordinate court, the subordinate court shall send the copy of the proceedings to the High Court and, on receipt of the proceedings from the subordinate court, the High Court shall proceed under paragraphs (a) and (b) of this section; and
(d) where the original court is a subordinate court and the subsequent court is a High Court dealing with the matter at first instance or on appeal, the High Court shall proceed under paragraphs (a) and (b) of this section.’
Finally, therefore, as it could be observed, ‘Community Service’ has a lot of advantages on the: offender; the victim; and the Community at large. Hence, remains a viable tool towards the actualisation of restorative justice in the Nigerian Administration of Criminal Justice System. Also, the case of Burkina Faso is not new in the Nigerian Administration of Criminal Justice System; what the Nigerian system lacks is ‘IMPLEMENTATION’ of the provisions and nothing more! The actors of this implementation are the respective ‘Chief Judge’ of the respective High Courts to which the ACJA is applicable by virtue of section 2(1) of the Act which provides thus
‘2.(1) Without prejudice to section 86 of this Act, the provisions of this Act shall apply to criminal trials for offences established by an Act of the National Assembly and other offences punishable in the Federal Capital Territory, Abuja.’.
In essence, ACJA is applicable to the Chief Judge of a State High Court as a Court which applies the ACJA whenever such State High Courts and the inferior courts in that State has to deal and or preside over criminal trials for offences established by an Act of the National Assembly.
Also, section 460(4) of ACJA (supra) has provided the importance of ‘Community Service´ as follows
‘(4) The court, in exercising its power under subsection (1) or (2) of this section shall have regard to the need to:
(a) reduce congestion in prisons;
(b) rehabilitate prisoners by making them to undertake productive work; and
(c) prevent convicts who commit simple offences from mixing with hardened criminals.’, which are the subject matter of this paper. I hope our courts would utilize this provision in section 460(4) of ACJA (supra) to always sentence convicts with less than three (3) years punishment under the criminal law to community service, especially, to clean and clear the court environments and dust the court fittings where necessary within strict supervision rather than sentencing such convict to correctional center. It further observed that the provisions of ACJA as a Nigerian Law is far encompassing and better in operation than that of the Burkina Faso. Nevertheless, ‘IMPLEMENTATION’ of the provisions of ACJA relating to ‘COMMUNITY SERVICE’ by the Chief Judges (including the President of the National Industrial Court pursuant to section 254C (l)(iii) of the Constitution of the Federal Republic of Nigeria (as amended) remains the challenge with the Nigerian system. I therefore urge and pray My Lords, the Chief Judges (including the President of the National Industrial Court pursuant to section 254C (l)(iii) of the Constitution of the Federal Republic of Nigeria (as amended) to implement these provisions relating to Community Service for an efficient restorative justice. This Community Service is also a way that the Nigerian Bar Association (NBA) can intervene by establishing what I call ‘the Community Service Duty Solicitors (CSDS)’ at all its branches pursuant to section 462(2) of ACJA.
Email: hameed_ajibola@yahoo.com 08168292549.
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