The enforcement of law and obtaining justice in Nigeria can be described as a difficult, yet an important aspect of the country’ existence. What ‘security as a right’ represents under the law to the average Nigerian is the responsibility of the state, through its security organ to protect the citizens and ensure their safety, this is what many citizens now feel as inaccessible. Established as a body to primarily enforce law and order, the Nigerian Police has over the years developed a negative perception from Nigerians. This has led to clamor for the establishment of a more restricted structure that would adopt indigenous methods of policing and the enforcement of law and order, a number of scholars, activists have even called for a scrap of the existing structure and a reinvention of the security organ of the state. With numerous incidents of abuse of power, citizen maiming and corruption, these claims have gained immense traction and have even been substantially under review and consideration by the legislature in Nigeria.
It is however, clear that the discretionary responsibility of the police may be extensively connected to the methods adopted in resolving disputes, as well as the mechanism adopted in punishing offenders. The adversarial method of crime prevention and resolution of disputes has for long gained criticism, calls for reformation have taken mammoth parts of conversations and media attention, with reference to the form it takes and the result it breeds as basis for these claims. Unlike the litigious suits and trial cases, Alternative Dispute Resolution (ADR) provides an expansive and inclusive process that may be adopted by the Police in carrying out their responsibilities, while reducing the spate of cases where citizens have to clamor for eradication or question the activities of members of the Police as a force. This may be due to the lengthened culture and continuous pendency of court matters, ADR has gained paramount significance in substantial parts of the judicial system, the reduction of recurrent crime engagement and the reformation of persons who engage in activities contradicting laid down laws of the state.
Although, not a familiar aspect of Policing in Nigeria and this part of the world, it is also a recognized method in other climes and in more developed societies, this is so, despite the historical background of employing the procedure in the pre-colonial systems which existed in Africa and Nigeria in particular. ADR is generally classified into at least two types: non-major binding processes which include negotiation, mediation, conciliation, expert determination, mini-trial, early neutral evaluation (ENE) and the major binding process known as Arbitration.
What is Alternative Dispute Resolution (ADR)?
These are generally forms of ‘structured & assisted’ dispute resolution mechanisms, usually with the aid of a neutral third-party. It entails a wide variety of processes and procedures, which can be fashioned to meet the specific needs of parties in resolving disputes; each process being an alternative to litigation or indeed force .
Modern ADR has developed over the last 30 years and has formed the basis for a revolution in the resolution of disputes. Despite the revolutionary nature of the process, ADR procedures are a very old concept of dispute resolution. What is new is the increased interest and attention towards more “co-operative” and “cost effective” conflict resolution. In furthering strengthening this resolve, new procedures, rules and guidelines have been developed to strengthen this old concept and process of dispute resolution. Ultimately, ADR processes are all about honouring the legitimate interests of all parties.
1. Confidentiality: This connotes a high sense of privacy and confidentiality of the dispute, as well as the recognition of the obligation by the parties.
2. Voluntariness: The submission of the parties to the process is by their free-will and not on compulsion. This means that the parties would ordinarily co-operate in resolving the dispute
3. Party-driven: Generally, the mechanisms under the process is all about empowering the parties to resolve their dispute, as well as ensuring that the solution to that dispute is not imposed, but arises from the mutual and acceptable agreement between the parties.
4. Neutrality: The third party whose responsibility is to facilitate/assist the parties to resolve their dispute is only determined on the basis of the agreement of all the parties. The parties own the dispute, while the intervening/facilitating party controls the process. Except in peculiar circumstances such as Arbitration, the intervening/facilitating party does not impose solutions; rather he reaches a conclusion from the findings of the submission of the parties.
Clearly, unlike the adversarial process, ADR addresses all issues, this would include the reasons for which the dispute exists in the first place, and the solution proffered can be wide ranging.
Characteristics of the Process:
* Fairness: this is because the process is participatory, confidence and trust is reposed in the intervening/facilitating 3rd party
* Efficiency: the process is result oriented, faster and cheaper than the adversarial process. The techniques and skills employed are peculiarly directed towards assisting the parties resolve their dispute, with minimal attention being paid to technicalities but towards reconciliation of the parties differences
Benefits and Major Outcomes from the ADR Process:
* Quickness in the time expended in resolving the dispute.
* Increased compliance with agreed solutions as a result of the nature and form of the process
The ADR process provides a “win-win” resolution of the dispute, for the parties; the legitimate interest of parties involved in the dispute are the primary factors in the process, and reduces cost which the parties expend, as well as reducing the delay which may be experienced as result of delays. There is improved satisfaction with the solution/outcome or manner in which the dispute is resolved among disputants.
Partnering for Effectiveness
The difficulty of charting through the murky waters of adopting ADR in criminal jurisprudence will demand involving other administrative institutions or government agencies. Examples of these institutions:
* Government Agencies such as the Ministry of Women and Social Affairs as well as the Social Development Ministries etc.
* Private Mediators and Conciliators
*ADR Institutions [i.e. Court-annexed ADR institutions]
Modern ADR practice has reinforced existing methods of dispute resolution; it has ensured a more structured employment, as well as establishing procedures and guidelines that have adopted new solutions, as well as technology [a very recent example is the adoption of new guidelines on remote arbitration by the Chartered Institute of Arbitrators and the International Chamber of Commerce in response to the COVID-19 and major restrictions placed to curtail the spread of the pandemic, hence affecting judicial response to crime and limiting investigation procedure]. There has also been the promotion of the principle of fairness and principles of natural justice. Parties, although being advised to adopt ADR, now have more liberality to choose between litigation and ADR.
With punitive provisions being the benchmark for resolving criminal matters, the nature of the ADR process makes it an unconventional method adopted in criminal jurisprudence. However, there is an inkling between the ADR process and the prevention of crime, as well as punishment of same. Many times parties may resort to some sort of mediation and negotiation, in order avoid the matter resulting in court and going through the litigious process. In adopting the procedure, victims of criminal offences are given the opportunity to meet with the persons accused of the crime, they are then made to lay out their grief, as well as outline what they may demand as compensation for the act of the offender. This is usually adopted for offences and in communities where people know one another, and as result, compensation is claimed for the victim, as well as reparation and identification of persons with criminal history in these communities.
This may be a case for community policing in itself, as the people in a community are responsible for crime prevention, as well as punishment of offenders in that environment. Clearly, as a result of this process, the victims and the community get compensated by the offenders and the punitive measure that may be adopted could include community development programs which would be targeted towards future crime prevention on the part of the offenders, as well as deterrence for potential offenders.
There are quite some hindrances, however towards adopting the procedure in criminal jurisprudence, which includes the insistence on existing methods and behaviours to crime prevention and punishment. Nigeria’s structure has over the years mirrored this, with consistent recurrence of old methods of policing and an insistence on existing structures.
IS POLICE RESPONSIBILITY RESTRICTED TO ENFORCEMENT?
Over the years, the role of the Police has been mostly described as ensuring public safety through law enforcement; more importantly, members of the force are commonly required to perform roles beyond law enforcement. In performing their responsibilities, the police in many instances do not enforce arrest. In actual sense, it would be very difficult to do so, as the resource available may serve as a strong impediment to this, more importantly, this may be met with a backlash from the citizens in the jurisdiction. In democratic jurisdictions like Nigeria’, strict law enforcement is neither fair nor effective; many times, it is in itself counterproductive to that public safety.
Of core essence to effective policing is the need to continuously and consistently evolve alternatives for law enforcement, as well as crime prevention and community engagement, in order to provide a wide range of options for the members of the police force, this would help to determine the response to the different forms crime may appear and public safety threatened. Options available to the police include community policing, intelligence gathering, social awareness on crime prevention, consistent monitoring of high risk zones [as well as remodelling of these places into open and accessible areas]:
This can be described as a situation where policing is institutionalized to follow indigenous knowledge base and communal involvement in law enforcement, as well as ensuring public safety. In this type of structure, individuals who live in a community are mobilized for advocacy, crime prevention, as well as community surveillance.
Intelligence gathering is also another benefit of reinventing the policing procedures. This could be done by permitting citizens in that particular jurisdiction, to exercise an informal control over acquiring information and intelligence on potential and active incidence of crime, as well as easily determining the identity of person’ involved in criminal activities. The Police can also engage the formal family system to exercise supervision over members of their community. Information dissemination would also be improved [this would help to increase awareness, reduce potential for the citizens to live in fear, as well as make citizens aware of media through which they can share their security concerns]. The geographical application of information is also necessary to curtail crime, as well as to repress existing criminal challenges.
Other areas include the enforcement of compliance with civil laws such as nuisance and asset forfeiture for transaction or economic based offences, recommending and enforcing special conditions of bail. Also, adopting and advising on short term disciplinary measures such as intervening short arrests, issuance of dispersal orders. More importantly, and previously outlined, this would discourage and curtail repeat offences and victims, as well as social vice control.
Ensuring Public Safety, An Alternative
Recent occurrences and increase in the spate of crime has encouraged calls for an alternative to the formal policing system; [with regional security outfits springing up], the calls have been to crack down on offenders, by enforcing arrests and mandating an intense crackdown on volatile areas. However, despite these calls coming from the masses and previous victims of this criminal occurrences, there has been notable examples where this outcry and the subsequent actions being borne and expressed in ways that are not as effective, but rather evolve into additional civic problems.
In Nigeria, the existing adversarial system adopted in criminal jurisprudence has over the years, lacked the capacity to curtail crime or effectively abolish public safety concerns. There seems to be a particular attention towards grave and serious offenses, with the structure being more reactionary than preventive. There also seems to be an attention to encouraging the expensive nature of the system, with prison population increasing overtime, and habitual occurrences of the same form of criminal activities, there is also an up-surge in communal insurrection.
Members of the Police are by this structure empowered to manipulate and abuse their authority [an example is the series of incidents which have led to the recent and recurrent End SARS campaign. Where this is the case, public trust and the relationship between the people, the state and the police is severely strained.
A WAY FORWARD
The role of the Police, in ensuring public safety is an enormous task. It entails a duty of ensuring justice while applying various methods. In doing this, members of the police exercise a substantial amount of discretion, be it at the police stations, on the field and even when the officers are engaged in intervention roles which spread across all strata of the force. In performing their responsibility and applying their discretionary powers [this might be as a result of the provision of the law or based on individual initiative], there have been obvious limitations to the maximization of their responsibilities and this may be as a result of lack of training and a lack of infrastructure to effectively which is not effectively applied. Although the law might compel or constrain some police discretionary decisions, it is necessary that there exist options for the police to choose from. In particular, this responsibility and discretionary obligation should be carried out in collaboration with members of the community [this could be through the consideration of the views of citizens, community groups, elected and appointed government officials, whilst informing police approach to resolving crime and more importantly, ensuring public safety.
I therefore recommend that an introduction of in-depth training on alternative dispute resolution mechanisms, compulsory adoption of the methods be made, under the empowering laws, as well as commending the members of the police to employ them in their primary role of ensuring public safety. As outlined in the early parts of this opinion, it is obvious that the nature of the ADR process is more channelled towards providing a democratic approach to resolving dispute, while ensuring that the raison d’etre of justice is attained, and bringing police discretionary decisions, particularly at the strategic level, out into the open can make the police more effective, it also sets the pace for other enforcement institutions to adopt, in order to ensure a more secure society and encourage public trust in the government being able to ensure public safety and ensure a more improved policing system.