Article 159(2) (c) of the Constitution provides firm foundation for ADR by mandating courts and national tribunals to promote “alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanism”, the Constitution contemplates submission to such ADR mechanisms in the context of judicial proceedings in exercise of judicial authority vested in the Judiciary. However, in their bid to promote ADR, courts are required by sub-article (3) to guarantee the protection of fundamental human rights and freedoms guaranteed under the Constitution.
The question as to the suitability of ADR in statutory crimes and crimes against the State is largely dependent on our societal values that shape our conception of justice. The extent to which our society is prepared to apply ADR mechanisms in criminal law is dictated by our conventional approach to sanctions in criminal law, which is in turn informed by our conceptions of justice – the choices we make as between redressive, restorative, distributive, preventive, corrective and retributive justice.
Redressive justice fits in well in civil recourse intimately linked to private law, which is suitably designed to facilitate the enforcement of rights between individuals and redress civil wrongs (such as torts – offences against the person, breach of contract, etc., and claims of unjust enrichment). The other models of justice (i.e., restorative, distributive, preventive, corrective and retributive) are more closely linked to criminal law. Their application depends on what a particular court seeks to achieve by imposing sanctions in any particular case. Whether or not ADR is suited as an alternative approach depends on the desired goals. For instance, alternative dispute resolution mechanisms (such as reconciliation and traditional dispute resolution methods) may be applied to facilitate the realisation of corrective and restorative outcomes.
The Benefits of ADR in Certain Statutory Crimes
Following my last week’s article, a reader sought to know whether it would be advisable to apply ADR in matters relating to economic crimes. Why not? You will agree that economic crimes are some of the most intricate unlawful acts punishable by the State. More often than not, economic crimes involve a number of people, some of whom are caught in the web without any idea that they are involved in a well-designed plot. Some or all of them ultimately reap economic benefits. In the end, it might be necessary to trace and recover assets and other tangible benefits derived from such criminal activities. And this is where ADR would serve a useful purpose.
While statute law prescribes maximum penalties for economic crimes, asset recovery should take the centre stage to ensure that nobody retains the benefits of such criminal activity. To this end, the Assets Recovery Agency, the Ethics and Anti-Corruption Commission and the Office of the Director of Public Prosecution might want to put their heads together and negotiate return of financial and other assets derived from economic crimes in return for lighter sentences and reimbursement of expenses incurred in the recovery process. In any event, plea-bargaining is not a phenomena unknown to our criminal justice system. Understandably, deterrent stiff penalties are intended to be both retributive and preventive. On the other hand, the retributive approach does not of itself correct the criminal conduct or make good the loss suffered by the State. For this reason, a balance should be struck as between making good the loss and imposing punitive sanctions on the perpetrators of such crime in an environment that allows for mutual benefits – reduced sentences, co-operation in asset recovery and deterrence.
ADR in Other Types of Crime
Reconciliation is not uncommon in trials for criminal charges against persons accused of offences against the person, such as assault and malicious damage to property. This ADR mechanism is founded on the conception of restorative justice, which has in recent years sparked intense debate as to whether it should be applied in more serious crimes (such as murder and defilement) as has been the case in certain traditional societies. Yet, nothing stops a court from applying a combination of restorative and retributive approach to criminal sanctions for such serious crimes. In doing so, the court should balance between the interests of the victim and the need to punish the offender. In so doing, though, caution should be exercised to ensure protection of the victim’s constitutional rights in accord with article 159(3) of the Constitution.
Conclusion
Various forms of ADR and, in particular, traditional dispute resolution methods have been a common feature of our traditional societies for centuries. Disputes, including claims in the realm of what is today categorized as private law and crimes against both the person and community in general, were effectively resolved under customary law in an intricately structured traditional justice system founded on the concepts of redressive, corrective, distributive, restorative and retributive justice. However, the onset of statute law served to reshape our judicial institutions and the underpinning concepts of justice. It is these traditional dispute resolution methods that article 159(2) of the Constitution seeks to preserve as part of the cherished ADR mechanisms in the context of civil claims. Yet, nothing stops our society from widely embracing ADR in criminal cases subject, however, to our obedience to sub-article (3). This issue is the subject of my forthcoming article in which I examine the value of ADR in criminal proceedings.
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