Even though greater emphasis is often laid on market mechanisms in civil claims founded on contract and other private legal relationships, traditional societies in Africa make little or no distinction between civil and criminal liability except in their restorative and retributive approach to claim adjudication. More emphasis is laid on restoring the parties and their communities to the place they would have been but for the offending conduct complained of. These informal justice systems not only seek to heal but also impose punitive sanctions in appropriate cases. In effect, their restorative approach to redress claimants and victims of offenses does not ignore the need for retribution or corrective sanctions imposed in certain cases. Their underpinning principles are anchored on the needs and interests of both the parties and of the community at large.
It should be borne in mind, though, that the use of ADR as a means of restorative justice is not unique to Africa. Australia, the United States of America and India, only to name a few, have been on the forefront of applying ADR strategies in both civil and criminal proceedings in a bid to enhance access to justice.
Suffice it for the moment to observe that the future of ADR and its efficacy in guaranteeing quality procedures and quality outcomes in conflict management and dispute resolution in both civil and criminal proceedings depends on the architecture of our policy, legal and institutional frameworks. Accordingly, these frameworks should be suitably designed to promote and support ADR mechanisms as practised not only in informal community justice systems, but also in support of the adjudicative functions of the Judiciary. In effect, recognition and support of the multiple legal orders by appropriate policy and legislation offers a firm foundation for effective resolution of disputes.
Despite the history of our judicial system, recent developments shed a ray of hope that soon, and very soon, ADR will be the process of choice in comparison to civil litigation. In his article on ADR, Adam Campbell correctly observes that “over the years, ADR has enjoyed varied degrees of popularity. Not too long ago, all civil disputes ended up in litigation, often with a great investment of time and expense.”[1]
Contending with the Exponential Change Towards ADR
We all appreciate that by nature, change begets resistance. Happily, though, the desired change towards ADR as the strategy of choice in conflict management and dispute resolution is in view. In his article titled “The Mind of the Lawyer Leader,” Dr. Larry Richard observes that “Few…today would argue with a proposition that we are in the midst of continuous external, disruptive, accelerating and exponential change.”[2]
According to evolutionary psychologists, “… exponential change is a state of existence to which we have not yet adapted.” According to Dr. Richard, the exponential change overloads our coping systems and causes such reactions as passivity, increased irritability and other negative emotions, reduced cognitive capacity, to protect yourself and focus on your own needs and less inclination to collaborate, co-operate or team up with others.[3]
True, the legal fraternity is yet to adapt to the dynamic world of ADR. Legal practice characterized by tenacity for litigation still exists in the past. It is no wonder that the exponential change towards ADR appears to have overloaded the coping systems of most legal minds, which explains their –
(a) passive attitude towards ADR;
(b) increased irritability and other negative emotions;
(c) reduced cognitive capacity to recognise the invaluable benefits of ADR;
(d) the tendency to protect the age-old ways of claim adjudication through litigation; and
(e) focus on their need to sustain one-track professional practice with diminished inclination towards collaborative strategies characteristic of ADR that facilitate co-operation and team spirit in the management of conflicts and resolution of disputes.
Today’s dynamic legal environment presents developing jurisdictions with a time of great change, and we cannot afford to do business as usual. Engagement in civil litigation and defence of criminal charges as though it were a sport from which we derive professional satisfaction without regard to the just outcomes and tangible benefits to our clients is tantamount to failure to deliver on our calling. “While a problem-focussed mind set is needed in our role as lawyers, it is devastating to us as human beings in a time of great change.”[4] Accordingly, it is incumbent upon each one of us to embrace and promote ADR and alternative justice systems that serve to deliver quality outcomes.
The Potential of Modern-day ADR Strategies
Most common and civil law jurisdictions have a defined legal framework for the conduct of commercial arbitration. Accordingly, little remains to be said about this market mechanism, save that commercial arbitration needs to be salvaged from the apparent drift towards highly formal adversarial model comparable to judicial proceedings, which has the likelihood of making arbitration bereft of quality procedures and outcomes on account of undue technicalities in which litigation lawyers delight despite the disproportionate costs to their clients’ detriment.
While other ADR mechanisms are essentially voluntary and contractual by nature, a holistic conflict management and dispute resolution framework would be an invaluable complement to the conventional judicial system. To this end, court mandated/annexed ADR requires enabling policy and legislation to guide judicial officers and tribunals in the promotion of ADR pursuant to article 159(2)(c) of the Constitution.
Even though most jurisdictions have rules of civil procedure that regulate ADR as part of the judicial process, few have comprehensive legislative and administrative frameworks dedicated to ADR. Such rules of procedure do not go beyond declaratory statement of their overriding objectives of inter alia expeditious disposal of proceedings[5] and the expression of authority to refer disputes for resolution by a specified ADR mechanism under an order of the court.[6] In effect, court-annexed ADR plays a significant role in the resolution of disputes submitted for adjudication in judicial proceedings.
Unlocking the Potential of Informal Community Justice Systems
The fact that community justice systems are essentially self-regulating and self-enforcing dictates that policy and legislation be appropriately reformed to promote and support these mechanisms without the need to regulate them. The only regulatory content of such policies and legislation should be aimed at ensuring that –
(a) the process and outcomes of community justice systems and their ADR mechanisms do not violate the Bill of Rights;
(b) such processes are not repugnant to justice and morality, and that they do not offend the Constitution or any written law;
(c) ADR practitioners in the communities are sensatised on (i) the relevant constitutional standards (such as the effect of article 159(3) of the Constitution of Kenya); and (ii) the law;
(d) There are defined jurisdictional limits and powers of ADR tribunals in making awards or sanctioning the criminal conduct of those persons subject to the community justice system;
(e) there is in force a code of ethics and standards of conduct for ADR practitioners;
(f) all practitioners of community-based ADR mechanisms adhere to the prescribed standards of ethical conduct;
(g) unethical conduct by ADR practitioners is sanctioned by law;
(h) any person whose fundamental rights and freedoms are violated in any of the ADR processes has access to judicial intervention and redress;
(i) the ADR mechanisms are accessible by all on an equal basis, and for a minimal fee, if any;
(j) the outcomes of ADR provide effective remedies and party satisfaction; and
(k) that there are simplified procedures for judicial intervention to enforce mediated settlements or agreements voluntarily entered into in resolution of civil disputes.
The Potential of ADR in Criminal Justice
The ongoing debate on the extent to which ADR strategies should be applied to enhance criminal justice is of great interest to sociological jurists and criminal lawyers alike. While the Criminal Procedure Code permits reconciliation between a victim and the offender, and subsequent withdrawal of charges in what is generally referred to as offences against the person, there is no consensus on whether reconciliation should be extended to all types of offences, including public and statutory offences, regardless of their gravity. Moreover, plea bargaining is common across the spectrum of criminal offences. In this regard, there is an ongoing debate as to whether ADR strategies, particularly mediation, should be entrenched into the criminal justice system, laying emphasis on restorative rather than retributive justice.
The ubiquity of plea bargaining demonstrates the relevance of ADR in the criminal justice system. This involves the prosecutor trading a reduction in the seriousness of the charges or the length of the recommended sentence for a waiver of the right to trial and a plea of guilty to the reduced charges. In such cases, the accused and the prosecutor have valid reason for bargain and settlement. In a case in which the evidence of guilt is overwhelming, the prosecution can avoid the inordinate expense and delay of a trial by offering modest concessions to the accused. When the evidence is less clear-cut, the State can avoid the risk of an acquittal by agreeing to a plea to a reduced charge. In view of the fact that substantive criminal law sanctions a wide range of charges and sentences for various types of criminal conduct, and because the procedural law allows prosecutors wide discretion in selecting charges, the prosecution has the discretion to give the defense a substantial incentive to plead guilty to a lesser charge, or to the offence charged in return for a lighter sentence.
In principle, plea bargaining (i.e., charge bargaining, fact bargaining or sentence bargaining) serves to enhance criminal case management and promotes the right to an expeditious trial. Moreover, the conception of social justice calls for “legal justice,” which means that the system for the administration of criminal justice must provide a cheap, expeditious and effective instrument for the realisation of justice for all sections of the society irrespective of their social or economic status.
Institutionalised plea bargaining is prevalent in India, Nigeria and the United States of America, only to name a few, where it plays a significant role in the disposal of criminal cases. Yet, there are those who argue that since a crime is an offence against society at large and the State, its very nature puts ADR out of the reach of the victim and the offender. This paper takes a contrary view and posits that plea bargaining by means of mediation and reconciliation stand to serve the wider interest of society by taking on modern-day ADR strategies, In so doing, the court, the public prosecutor, the investigating officer, the offender and the victim of the offence charged collaborate in the alternative process towards a victim-centred restorative justice, an approach that meets the needs and interests of, and yields satisfaction for, both the victim and the offender despite the apparent leniency and general public disapproval.
As a means of restorative justice, ADR is used to facilitate the convergence of the needs and interests of the victim, the offender and their immediate community. As explained by Vikrant Sopan Yadav, “… restorative justice focuses on resolving the disputes between the parties[, restoring] and maintaining the harmonious relations between them. It creates opportunities for parties to crime to discuss the crime and its ramification, to repair the harm caused, and restore the amicable relations between [them].”[7]
Tony Marshall defines restorative justice as “…a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of that offence and its implications for the future.”[8] In other words, it is a facilitative process for resolving crime by focusing 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.[9] Simply put, the conception of restorative justice denotes ADR as “… a road the parties must travel to arrive at their goal of mutually satisfactory settlement”[10] in cases other than capital and sexual offences, which go against the grain of article 159(3) of the Constitution.
The need for restorative criminal justice cannot be overemphasized. Today’s dynamic legal system demands a shift from the predominant retributive approach in which the offender is viewed as deserving punishment or rehabilitation in accord with the concept of distributive justice. The proponents of retributive and distributive justice view a crime as a violation of the State rather than the victim. This explains why the State takes charge of the proceedings in which the victim is denied active participation and relegated to the insignificant role of a prosecution witness with the primary objective of punishing or rehabilitating the offender instead of viewing the crime as a matter to be dealt with between the victim and the offender. In contrast, restorative justice is inclusive and focuses on restoring the harmful effects of the act of crime, and actively involves all parties in the criminal process.[11]
Rather than punish or rehabilitate the offender in total disregard for the needs and interests of the victim, restorative justice enables the offender to (a) repent for their crime; (b) strive to mend the injury done; and (c) be reintegrated into the community.[12] Moreover, revenge in itself is counterproductive. As Ric Simmons rightly concludes, it does not redress the victim or relieve their fears. Neither does it heal or provide closure, or help the society to make sense of the resulting tragedy.[13] On the other hand, ADR provides an opportunity for the victim, the offender and their community to participate in the process with the shared goal of redressing the harm done, reintegrating the offender into the society, and bringing closure to the matter. There is little doubt that widespread adoption of ADR in criminal proceedings will go a long way in enhancing criminal justice in our dynamic legal system.
Conclusion
Having recognised the need for policy, legislative and institutional reforms to support ADR, African states need to take decisive steps to regulate ADR practice and procedure in both civil and criminal cases. They need to harness and unlock the potential of the multiple legal orders in accordance with which individuals and local communities manage conflicts and resolve disputes in disregard of the popular distinction between civil wrongs and criminal offences.
The proposed policy and law reform measures would provide the much-needed regulatory framework to back judicial institutions as they begin to annex or mandate appropriate ADR strategies designed to guarantee full and equal access to civil and criminal justice. However, the recommendations made in this paper are by no means exhaustive. Neither is it suggested that they are applicable to each and every jurisdiction in Africa in identical terms. Rather, they are design to provoke thinking and exploration of possibilities for policy, law and institutional reforms to promote and strengthen ADR mechanisms alongside the conventional judicial system. The paper recognizes the need to set minimum standards for the regulation of ADR practitioners and the related professional organisations without undermining their paramount right to self-regulation, and without disturbing the fabric of self-enforcing community justice systems.
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[1] Adam Campbell “Alternative Dispute Resolution – A Faded Fad or Viable Alternative for Business Disputes?” available at <raibarone.com/wp-content/upload/2013/08/alternative-dispute-resolution-a-faded-fad-or-viable-alternative-for-business-disputes-adam-campbel.pdf> (last accessed on 17th July 2018).
[2] Richard L “The Mind of the Lawyer Leader” available at www.lawpractice.org (last accessed on 17th July 2018).
[3] ibid.
[4] ibid at p.4.
[5] Sections 1A and 1B of the Civil Procedure Act (Cap. 21 Laws of Kenya).
[6] Order 46 of the Civil Procedure Rules, 2010.
[7] Prof. Vikrant Sopan Yadav “ADR as a means of restorative justice” in International Journal of Law Vo. 3(2) (March 2017) pp.59-61 available at www.lawjournals.org (last accessed on 6th August 2018).
[8] Theo Gavrielides Restorative Justice Theory and Practice: Addressing the Discrepancy (Criminal Justice Press Helsinki 2007) pp.2-3.
[9] United Nations Office on Drugs and Crime Handbook on Restorative Justice Programmes (Criminal Justice Handbook Series New York 2006) p.6.
[10] Lon Fuller “Mediation – Its Form and Its Functions” s. California Law Review (1971” Vo. 44 pp.305-27.
[11] Jim Dignan Understanding Victims and restorative Justice (Open University Press 2005) p.94.
[12] Ric Simmons “Private Criminal Justice” Wake Forest Law Review (2007) Vol. 42 p.945.
[13] ibid.