AN APPRAISAL OF THE PRINCIPLE OF RESTORATIVE JUSTICE IN THE NIGERAIN CRIMINAL JUSTICE SYSTEM

This paper examined the criminal justice system of Nigeria by essentially highlighting the gaps and the resultant effects of a criminal jurisprudence that was pivoted on the retributive criminal justice system only. The work conceptually analyzed the principle of restorative justice and appraised the provisions for the principle of restorative justice in the Administration of Criminal Justice Act of 2015. The paradigm shift from retributive to restoration justice as provided by the Administration of Criminal Justice Act of 2015 and the laudable consequences arising therefrom was underscored. To achieve the set goals the paper discussed the Nigerian Criminal Justice System, Restorative Justice in Perspective, the Innovative Provisions of the ACJA 2015 on Restorative Justice and New Direction for Criminal Justice in Nigeria. It concluded with a call on other States of the Federation to emulate the Federal Government in re-couching their criminal justice system on the principle of restorative justice.


Introduction
Criminal law is that body of substantive law that deals with conducts considered harmful to society as a whole which is prohibited by statute, prosecuted and punished by the government. Criminal law therefore defines those conducts which are forbidden by the state and prescribes punishment for the breaches. The principal aims of criminal law is to preserve public order and decency and to protect the citizens from what is offensive and injurious as well as to provide sufficient safeguards against the exploitation and corruption of the more vulnerable members of the society. Acts like attempted murder, rape, stealing, murder, manslaughter, attempted suicide, kidnapping, corruption, bribery, obtaining money under false pretenses, forgery, bigamy, perjury, armed robbery, robbery, arson, examination malpractices, cultism and so on are classified as crimes (Alobo, 2016). Under Nigerian law, before an act and/or omission can constitute a crime, it must be so prohibited by a written law and punishment provided thereof. This position has found expression in the various constitution of Nigeria. For instance, section 22 (10) of the 1963 Constitution was to the effect that no person shall be convicted of a criminal offence unless that offence is defined and the penalty thereof is prescribed in a written law. The useful implication of this is that, common law and customary offences came to an end in Nigeria by this constitutional fortification (Karibi-Whyte, 1993).
The extant constitutional provision invigorating and reaffirming this position is section 36 (12) of the 1999Constitution which provides thus: • Subject as otherwise provided by this constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an act of the National Assembly or law of a state, and subsidiary legislation or instruments under the provisions of the law.
In line with this position, the court in Aoko v Fagbemi rejected an attempt to prosecute a woman on the basis of an alleged adultery. Although adultery was a customary offence, the court discharged and acquitted the accused because adultery was not prescribed as an offence in the Criminal Code of southern Nigeria. In Ogbomor v The State the Supreme Court of Nigeria unhesitatingly held that a combine reading of the provisions of section 33 (8) and subsection (12) of the 1979 (equivalent to the 1999 constitution) suggests that no person can be tried and convicted of an offence which did not exist at the time of its commission. A similar decision was reached in the case of Ifeagwu v FRN &Ors.
To underscore the fundamental character of this principle, the Constitution also prohibits retrospective culpability. In this connection, Section 36 (8) of the 1999 constitution states that no person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitutes such as offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed. The above section speaks against retro-active application for an offence or omission. It emphasizes the fact that a person can only be punished based on an existing law and on the punishment which that law has expressly provided for (Alobo, 2016).
Today the application of English common laws has been emasculated although the vestiges can be seen in our own laws. Thus, the main, and probably, the only source of Nigerian criminal law are Nigerian statutes. In other words, for an act, or/and omission to constitute crime in Nigeria, there must be a Nigerian legislative enactment in that respect. The only role cases play as secondary source of criminal law is to facilitate the comprehension, clarification and construal of the statute. Though in the process, criminal law is espoused and expanded. Statute as a primary source of Nigerian criminal law encompasses federal, state and local government laws outlining conducts or omissions considered unlawful and attaching penalties thereto (Karibi-Whyte, 1993).
Criminal justice system comprises the entire collection of criminal law and procedure ranging from the moment when a criminal complaint is laid before a police officer or any law enforcement agent and continues through arrest, arraignment, trial, conviction and sentence of the person who is guilty of the crime. It also extends to any possible appeal flowing therefrom. The criminal justice system in Nigeria, as in any nation of the world begins with a process and with three components comprising the enactment of law criminalising an act and/or omission, the police, the courts, and corrections prisons, with each component impacting the overall process of the system. The criminal justice system therefore defines every phase of procedure once an offence has been committed, from the investigation, through the trial, to the type and length of punishment if there is a conviction . The criminal justice system envisages at least 3 components, viz: the law enforcement, judicial process and reformatory institutions. It is defined as the collective institutions through which the accused offender passes until the accusations have been disposed of or the assessed punishment concluded (Garner, 2001

Nigerian Criminal Justice System
Like every other valid law, the Criminal Justice System in Nigeria derives its validity from the Constitution. Unfortunately, the Constitutional flavour on our Criminal Justice System links it to the inspiration from the retributive jurisprudential school of thought that emphasizes punishments for crime as the aim of criminal justice. This much is distillable from Section 36 (12) of the 1999 Nigerian Constitution which provides that: • Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty thereof is prescribed in a written law, and in this subsection, a written law refers to anAct of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provision of a law.
From the constitutional viewpoint, criminal justice is attained when a criminal law being applied satisfies the twin requirements of written definition and prescriptive penalty. The constitutional direction for the criminal justice system does not contemplate the interest of victims of crimes. Thus, it is without ambiguity that the attention of Nigerian criminal justice system is focused on the offender. Crimes are always viewed as against the State, no matter the personal injuries suffered by the victim. Hence the system has been more punitive than restitutive. Our experience as a nation however reveals that penalty alone as the aim of criminal justice cannot guarantee an effective criminal justice system that can elicit the faith of the citizenry in it.
Nigeria operates a federal constitutional democracy, with a dual criminal justice system (Nwosu, 2010). Judicial powers in the country are constitutionally divided between the Federation and the component States. The judicial powers of the Federation are vested in the courts established for the Federation, while the judicial powers of a State are vested in the courts established for the State as is apparent from the provisions of section 6 (1) and (2)  The main purpose of a criminal judicial system is to reduce crimes to the barest minimum in the society, prosecute and punish the minds responsible for criminal acts, protect and restore the victims of crimes and the society to as near as possible before the crimes were committed. These procedural laws neither abated criminal activities nor did they ensure substantial justice in line with the aforesaid purpose of the criminal justice system. Rather, they became veritable instruments in converting criminals into hardened criminals by perpetuating a system that emphasized punishment above the restoration and integration of the criminal back to the society. The criminal justice system in almost all of the States of the Nigerian federation is currently retributive. This system focuses on inflicting punishment and pain on the offender than any real attempt to reform and reintegrate the offender back into the society.
The failure of the Criminal Justice System in Nigeria to satisfy the minimum goals of criminal justice is among other factors, attributed to its heavy reliance on the machinery of punishment, to the neglect of the correction and restoration of the offender and the victim's remedy. The provisions as contained in the CPA and CPC that were domesticated in the Southern and Northern States respectively are unsatisfactory. For instance, conviction is a precondition for the award of compensation, which need not be the case. While, there is no definite procedure for qualifying the amount of compensation to be awarded by the trial court, it is often determined without hearing from the victim as to the extent of the injuries suffered and other expenses incurred by the victim (Adeniyi, 2002).Nigeria's criminal justice system draws inspiration from the retributive jurisprudential school of thought that emphasizes punishments for crime as the aim of criminal justice (Okwendi, 2014). The system has been more punitive than restitutive and as such its operators became insensitive to the victim's plight.
The slow pace of criminal trials in the Nigerian courts and the congestion of the prisons, especially with inmates awaiting trials are blight on the criminal justice system in Nigeria. Nigerian prison service is an institution meant to administer penal treatment to adult offenders. Its importance is in the bid to reduce crime in the society. The number of awaiting trial constitutes more than three quarter of population. Many of the cells meant to accommodate about 50 inmates are now accommodating about 150 inmates; all cramped together (Abuchi, 2013). The highly deplorable condition of the prison system has become a centre for breeding and churning out hardened criminals in contradistinction with the traditional goal of the prison as a correctional facility. Successive governments at both the state and federal levels acknowledge the magnitude of these problems and have initiated programmes and projects aimed at improving the state of criminal justice system, delivery and access to justice generally. Unfortunately, and quite regrettably, most of these efforts have failed to yield the needed results primarily because the basis of our criminal justice system is skewed towards retributive rather than restorative justice. A criminal justice system that is pivoted only on retributive justice system should expect the harvest that bedevils our criminal justice system.

Appraising Retributive Justice
Retribution justice is justice that is founded around punishment as a means of preventing vengeance from the victim. The philosophy behind this form of justice regime is that victims are thought to have natural proclivity to revenge which can only be assuaged if they see that the offender has been adequately punished. The punishment of the offender gives the victim a sense of justice and relieve. The only goal in retributive justice is punishment. Whether it deters or restores is immaterial. Proportionality is an important concept in retributive justice. This does not mean that the punishment has to be equivalent to the crime. A retributive system must punish severe crimes harsher than minor crimes, and the severity of the crime is usually determined by amount of harm and the moral imbalance it creates (Abikan, 2017).
Deterrence is considered a critical component of retributive justice system. When offenders are punished it is assumed that such punishment will serve to deter the offender and other prospective offenders from committing further crime. Deterrence is therefore aimed at preventing future crime by frightening the potential criminal or released felons. The concept of deterrence usually has two assumptions. The first is that specific punishments will deter offenders from committing further crimes, and the second is that the fear of punishment will deter others from committing such crimes (Abikan, 2017).
The concept of offences in Nigerian criminal law is founded on proportionality of offences and punishment as a means of deterrence. For instance, felony is defined as an offence which is punishable, without proof of previous conviction, with death or with imprisonment for three years or more and are considered the severest offence. Misdemeanours, on the other hand are offenses with punishment of not less than 6 months and not more than three years. The Criminal Code defined it as any offence which is declared by law to be a misdemeanour, or is punishable by imprisonment for not less than six months, but less than three years. From the above analysis of classification, it is obvious that the Criminal Code basically classified offences by the degree of seriousness of the wrongdoing with corresponding proportionate punishment.
A corollary of this is that punishment and deterrent are central to retributive justice. Whether the severity of punishment actually deters offenders is debateable. Most criminals actually act independent of the exercise of their free will by reason of drugs, alcohol and other illicit substances thereby making it impossible to reflect or be dissuaded by any punishment regime. Therefore, it is unlikely that such persons are deterred by either the certainty or severity of punishment because they are temporarily impaired and lack the capacity to consider the consequences of their actions.
One major form of punishment in the Nigerian justice system is incarceration which is designed to removing the felon who has been convicted of a crime from the society for a period of time or even forever so as to prevent future crime. The purpose of imprisonment is to confine the convict under punitive conditions thereby taking away his fundamental liberties and subjecting him to deprivation. Incarceration is the most common method of incapacitating offenders; however, other, more severe, forms such as capital punishment are also used. The overall aim of incapacitation is to prevent the most dangerous or prolific offenders from reoffending in the community. The composite implication of retributive justice is intended to achieve punitive, revengeful and retaliatory effect.
There are however also the vestiges of restitution in the Nigerian criminal justice system which is intended to punish the convict monetarily for the benefit of the state. In other cases, restitutive systems might get the accused to restore (if possible) things taken away. Repairing damages, replacing stolen properties or income lost and in other case performing community service in a manner that provides closure for the society or persons hurt by the crime. The payment of fine and/or imprisonment is part of the crime deterrent regime of our criminal justice system. The prevailing adversarial system is bedeviled with various challenges such as over-incarceration, recidivism, high rates of juvenile crime and prison congestion.

Restorative Justice in Perspective
Restorative justice is a process whereby all the parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for the future. In short, restorative justice is a process through which remorseful offenders accept responsibility for their misconduct to those injured and to the community that, in response allows the reintegration of the offender into the community. The emphasis is on restoration: restoration of the offender in terms of his or her self-respect, restoration of the relationship between offender and victims, as well as restoration of both offenders and victims within the community (Ibidapo, 2010).
Restorative justice provides a very different framework for understanding and responding to crime. Crime is understood as harm to individuals and communities, rather than simply a violation of abstract laws against the state. Those most directly affected by crime --victims, community members and offenders --are therefore encouraged to play an active role in the justice process. Rather than the current focus on offender punishment, restoration of the emotional and material losses resulting from crime is far more important (Ayorinde, 2014).
Restorative justice models are based upon several overarching principles. First, crime is primarily a conflict between individuals, resulting in harm to victims and communities and to offenders. It is only secondarily a transgression against the state. This simple notion has profound consequences as demonstrated by the previous discussion on defining crime. Second, the central goal of the criminal justice system should be to reconcile victims, offenders and their communities while repairing the harm caused by the criminal behaviour. That is not to say that public safety is not paramount. Rather, it is the method of achieving public safety that is under debate. Third, the criminal justice process should facilitate active participation by victims, offenders and their communities. This results in a diminished role for the state (Latimer and Kleinknecht, 2000).
For victims, restorative justice offers individuals a meaningful voice in the process. The victim may also experience satisfaction from playing a part in preventing future criminal behaviour and from receiving reparation. For offenders, the process can be therapeutic as they take responsibility for their actions and take steps to repair the harm. For community members, the process serves to humanise the criminal justice system and reduce fear of crime by providing more accurate information about offenders and crime in general. Restorative justice also provides community members with a voice in the criminal justice process. Restorative justice has been described as an empowering experience for all participants in the triad (Bazemore and Schiff, 2001).
Restorative justice programmes focus more on addressing the problems caused by a criminal conduct than just trial and punishment of the offender. It is an all-inclusive problem-solving approach that ensures that the interests of major stakeholders in the crime are well addressed and protected. With restorative justice, the victim, the offender and the community all participate in the crime disposal process. Basically, the victim is compensated as much as can be reasonably achieved; the offender is effectively reintegrated back into the community of responsible citizens; and the community is restored to normalcy. The concepts of reconciliation, restitution, reintegration, and restoration are the key values of restorative justice (Abajuo, 2016).
As a corollary, the restorative approach is a process which involves the following: 1) The victim and the offender play remarkable role in the process which is usually anchored by relevant state institutions. The processes normally involve parties participating in meetings with each other as well as nominate supportive persons during the conference. 2) These conferences discuss how the crime was committed, the level of damage done to the victim and the society. The offender's perspective is evaluated together with the version of the victim. 3) Subsequently, if parties agree to settle, a plan with specific commitments on the part of the offender and the victim will be agreed upon and signed by the interested parties. The process is designed to be participatory, reconciliatory and restorative.
At the end of the entire process, the following laudable outcome would be achieved, namely:

Reconciliation
Since the process is participatory and interactive in nature, it effectively creates avenue for positive interaction and socialization or encounter between the victim and the offender. The aim is to ensure that some of the fears and concerns of the victimare addressed and to also bring the offender in close experience with the extent of the harm caused by his conduct on a fellow citizen. The process creates a rear opportunity for the offender to have hindsight experience of the damage caused and appreciate the effect of the harm on the victim. The reality of interacting with the victim infuses a sense of remorse and empathy on the offender. While full reconciliation between the victim and the offender may not be guaranteed in all cases, a guided meeting between them can serve as antidote to the concerns of the victim and trigger remorseful feelings, hence a change of attitude in the offender. This is valuable because of the possibility of some kind of future relationship between the parties after the disposal of the criminal case .

Restitution
A prime utility of restorative justice is its provision for the compensation of the victim of crime. This is an effort to restitute the victim, if possible to the pre-crime status. The system is intended to reinstate the victim to the position he was before the crime by mending the harm produced by the victim by the offender. Full restoration of the victim may be impossible; it however serves the interest of victims of crime better than they can ever have under retributive justice.

Reintegration
Rehabilitation and reintegration of the offender back into the society is a critical component of restorative justice. It deemphasizes punishment and stigmatization of offenders and rather sees them as victims or prisoners' criminal tendencies that need help. Restorative justice therefore underscores disposal options such as community service, vocational training, compulsory education and other forms of correctional and constructive engagement that offer the offender real and genuine platform of rebuilding themselves to desist from crime and contribute positively to the society. If well-structured and implemented, restorative justice system is the most effective way of ensuring the veracity and reliability of any criminal justice system.

Restoration
At the end of the process, both the offender and victim are considerately restored to their pre-crime state. The community is assured against future occurrence of the offending conduct and the societal equilibrium distorted by the crime is redressed and repaired, while recidivism is reduced to the barest minimum. It helps the relevant authorities on research basis as to why that offence is being committed, how it is executed etc. Restorative justice essentially, aims to heal the victim's wounds; restores offenders to law abiding lives; repairs harm done in inter-personal relationships and the community; seeks to involve all stakeholders and provide opportunities for those most affected by the crime to be directly involved.

Appraisal of the Innovative Provisions of the ACJA 2015 on Restorative Justice
Current trends in criminal justice administration indicates a paradigm shifts from retributive penal justice system towards creative problem-solving approaches as embodied in the concept of restorative justice, victim compensation and other non-custodial options for crime disposal. Despite the importance and widespread global acceptance of the efficacy of these emerging principles and practices in promoting effective criminal justice administration, attempts in Nigeria to integrate these concepts into the criminal justice system has yielded limited results (Odoh, 2015).
This means that the concept of restorative justice has not been totally institutionalized in the Nigerian criminal justice system. The more the criminal justice system cared about finding ways to deal with offenders through harsh legislation and tough policing, the less time and energy is devoted to finding the root causes of crime, and crime control issues related to victims needs, interests, aspirations and expectations, and offenders behaviour modification, reformation and reintegration (Jame, 2007).
To get around this predicament, the Administration of Criminal Justice Act was introduced in 2015. The Act covers the entire criminal justice process from arrest, investigation, trial, custodial matters and sentencing guidelines. The long title or explanatory memorandum of the ACJA captures the essence and utilitarian value of the law. It states thus: • This Act provides for the administration of The practical implication of these provisions is that ACJA has endeavored to remedy the problem of prison congestion by offering other potent alternatives to imprisonment. In particular, the ACJA in sections 453, 460 and 468 addresses the problem of extreme use of imprisonment as a disposal method by introducing some substitutes to imprisonment.
One remarkable and restorative dimension of the ACJA is that it makes provision for the payment of compensation to the victim. Section 319(1)(a) of the ACJA provides thus: • A court may, within the proceedings or while passing judgment, order the defendant or convict to pay a sum of money: (a) as compensation to any person injured by the offence, irrespective of any other fine or other punishment that may be imposed or that is imposed on the defendant or convict, where substantial compensation is in the opinion of the court recoverable by civil suit.
Similarly, Section 321 of the ACJA vests the Court with power to order restitution to the extent of returning the property to the owner or to the owner's representative or to pay an amount equal to the value of the property.
Another important provision of the ACJA is on plea bargain that aims at reconciling the victim and the offender, and compensating the victim for his losses arising from the offence. Section 270 of the ACJA lays the outlines of Plea Bargain, provided some conditions are met. One of such condition as stated in paragraph (b) of the subsection is the consent of the defendant to return the proceeds of the crime or make restitution to the victim or his representative. Embedded in the guidelines for plea bargaining, is the attempt at reconciliation between the offender and the victim.
The provisions of the ACJA on suspended sentence and community service are directed at reintegrating and restoring the offender into the society. Also, a combined reading of the aforesaid Sections with Sections 401-405 leaves no illusion that the ACJA is entirely predicated on the principle of restorative justice. The provisions of Sections 401-405 are retributive. It is, therefore, submitted that the ACJA is a hybrid of both retributive justice and restorative justice. This piece of legislation fuses the values of the two principles. From the foregoing, thus, it may be safe to assert that restorative justice is the underlying principle of the ACJA.
The hybridization of both retributive justice and restorative justice in this piece of legislation is highly commendable. This is contrary to the opinion of some learned authors, like Abajuo (2016), canvassing for the expunging of the retributive justice principle from the ACJA. With due respect, those canvassing for this position have not averted their minds to the constitutional provision contained in section 36 (12), which otherwise will make the ACJA inconsistent with the Constitution, hence null and void to the degree of the inconsistency. Apart from the fact that retributive justice is a core constitutional requirement for the character and validity of our criminal justice system, our criminal jurisprudence has not developed to the point of leaning entirely on restorative justice.
Unfortunately, and quite regrettably, the ACJA is only applicable in criminal trials for offences established by an Act of the National Assembly and other offences punishable in the Federal Capital Territory, Abuja. The Lagos State Government also enacted the Administration of Criminal Justice Law (ACJL). Both the ACJA and ACJL have embedded some innovative reforms that combine the current retributive justice system with a restorative / reparative approach. It is however sad that all other States of the federation are still tied down with either the application of the CPA or the CPC depending on whether they are in the South or Northern Nigeria. The criminal justice system on the wheels of either the CPA or CPC is gravely confined to the notion of retributive criminal justice delivery only. It is of concern because bulks of the criminal trials are done in the States' courts, especially the Magistrate courts where either the CPA or CPC are still being applied wholesale (Lawal, 1990).
The adoption of restorative justice as part of the criminal justice system in all Federal and Lagos State's Courts is no doubt a tonic that has boosted the effectiveness of the criminal justice delivery in those jurisdictions. An effective criminal justice system involves the state, the society, the offender who commits the act and the victim(s) of the crime.

Conclusion
The ACJA is the outcome of a thorough legislative evaluation of the CPA and the CPC which produced a synchronized national law, intended to remodel the criminal justice system in the country. On the whole, the ACJA designed and constructed to stimulate quick administration of justice, promote a crime free society and institutionalize a paradigm shift from punishment as the main goal of criminal justice to restorative justice, which pay attention to the needs of the society, the victims, vulnerable persons and human dignity.
In view of the cumbersome and untidy proceedings that characterize the criminal justice system predicated on the principle of retributive justice, the ACJA offers a chance to ensconce efficient standards and principles in criminal justice administration in Nigeria. Therefore, States that are yet to domesticate the law should make efforts to adopt the ACJA in order to achieve uniformity of criminal procedure in Nigeria. The purposes of the Act will be significantly achieved with such homogeneity and the introduction of subsidiary rules to standardise practice and protocols in criminal proceedings.
The inability of the States Houses of Assembly to quickly domesticate or enact their own law using the ACJA as a model has greatly undermine the attempt of the ACJA to promote the efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, defendant and the victim. This is because greater percentages of criminal trials are done in the States' courts. The Houses of Assembly of States in Nigeria are therefore called upon to see the strengths of the ACJA and enact their own laws with the ACJA as a model. This will unify the administration of criminal justice in Nigeria.