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What is restorative concept in sentencing convict?

By Bamidele Kolawole

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Restorative justice is a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future. The concept provides a very different framework for understanding and responding to crime.

Olubunmi Akinseye Esq

The sole objective of any Criminal Litigation trial, is for Justice to be properly served.

It is also a fact and law, that the Nominal Complainant, either individual or corporate does not have prosecutorial power, hence leaving the Nominal Complainant without any form of satisfaction other than, that the accused is committed to Prison, particularly when the offence is in respect of material exhibits such as money.

In other to restore the Nominal Complainant to it’s state before the crime was done against him or her, it then becomes imperative to allow Exemplary award to the Nominal Complainant, consequent upon the guilt of the accused.

Hence, the aim of Restorative concept in Criminal Litigation is to ensure that Justice is fully served in favour of the Complainant as expected.

Before now, the doctrines of double jeopardy, was preventing restitution to victims of crime, particularly when tangible items are involved which could not be recovered from the culprit too, the egg-Shell Rule is only largely available in Tort and hardly ever applied in criminal litigation.

However, with the Restorative concept, the Court can order the culprit to pay back whatever he or she had deprived the nominal complainant that led to the litigation, and or, on the other hand, the nominal complainant, through a Lawyer, can bring a claim in civil case, to recover the lost item.

In essence, the Aims of Restorative concept in sentencing a convict are:

1. To satisfy the Nominal complainant’s sense and feeling of having achieved Justice.

2. To ensure that the culprit does not benefit the object of the crime as justification for his conviction.

3. To serve as deterrent to others who might want to engage in crime, for them to know that there is no gain than imprisonment.

Ilemobayo Akinbote Esq.

In our administration of justice system, it is important to interrogate the aims of sentencing practices. What aims does the sentencing of a convict tend to achieve in criminal trial.

For instance, where a convict is sentenced to certain term of imprisonment, the principal aim borne in mind is to deter others from committing similar offence. Here, the deterrence theory of punishment is deployed.

This could be said to be retributive in nature. However, in our criminal justice system, once a convict is committed to prison that in itself suffices.

Where such a convict is fined and the fine is paid, that is the end of the journey for criminal trial. What this suggests is that the victims of those crimes are left out of the justice system.

This is why the issue of victimology was contrived to look at what usually happens to the victims of crime at the end of the day.

The proponents of the theory of victimology have said that in the administration of justice, victims of crimes must be taken into consideration.

They should not be allowed to go home to bemoan their ordeal in the hands of criminals. This is why the issue of restitution came into play. Take for instance, if the offence is a property offence like stealing or fraud, the defendant may be made to return what has been stolen.

In another leg, if the crime is against an individual, the suspect or defendant may be made to put his victim in a position he or she would have been, if such crime had not been committed in the first place.

This is why this particular proposition was embedded in the Administration of Criminal Justice Act and has been domesticated by some states in Nigeria.

This is also the reason why the issue of compensation comes into being which means that at the end of criminal trial, even if the defendant is sentenced, the victims are compensated so that the nominal complaints will be left with the feeling that justice has indeed been done in his case.

The principal aim of restorative justice is to ensure that victims of crimes are compensated for whatever wrong committed against them.

Toun Mary Yinusa, Esq

In the Nigerian criminal justice system, the punishment of an offender can be conventional or retrospective.

The conventional criminal justice system in Nigeria provides limited scope for the victim and offender to engage in dialogue with the aim of restoring respect and trust in relationships, it further gives scant attention to the needs of victims.

Meanwhile, retrospective justice in criminal trial response to criminal justice focuses on the needs of victim, offender as well as the involvement of the community instead of relying heavily on applying the law and administering punishment on offenders.

In Nigeria, the major problem in the criminal justice system is the alarming long delays in the administration of criminal justice with its consequent prison congestion as well as quite a number of inmates awaiting trial.

Thus, the conventional criminal justice system is concerned with ‘retribution’  and punishing the offender, concentrating more on the crime itself than on the people involved, which is often not in the best interests of the victim, the offender, or society in general. 

However, the retrospective concept of criminal justice system aims at repairing the damage caused by the wrongful action and restoring, insofar as possible, the well-being of all those involved.

Restorative concept is about victims and offenders communicating within a controlled environment to talk about the harm that has been caused and finding a way to repair that harm.

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The concept of restorative justice sometimes also called reparative or transformation justice in other jurisdiction, is the practical application of some of the components of Alternative Dispute Resolution(ADR) to criminal matters and causes.

In conclusion, in as much as the conventional criminal justice system is good, the retrospective concept is more rewarding to the criminal justice system as it aims at making victims take active role in the process of justice dispensation, while convicts/offenders are encouraged to take responsibility for their actions to repair the harm they have done by apologizing, returning stolen goods/restitution, compensation, community service and so on.

Funmilayo Olagunju Esq.

Justice is described as a three-way traffic by Justice Oputa in the case of Josiah v. State (1985) 1 NWLR (Pt. 1) 125

There is a route of justice to the victim which is often retributive in nature. The victim is pacified by the punishment melted out to the defendant.

There is a route of justice to the State whose law has been broken by the defendant. This type of justice is often punitive in nature.

The aim is to serve as warning, lesson and deterrence to other and show that crime does not pay.

The last route of justice is towards the defendant. This type of justice is restorative in nature as it seeks to reform the defendant to become a better, refined and useful member of the society.

Black’s Law Dictionary, 8th edition at page 1340 defines restorative justice:

“An alternative delinquency sanction that focuses on repairing the harm done, meeting the victim’s need, and holding the offender responsible for his or her actions. Restorative justice sanctions use a balanced approach, producing the least restrictive disposition while stressing the offender’s accountability and providing relief to the victim.

The offender may be ordered to make restitution, to perform community service or to make amends in some other way that the court orders.”

The restorative concepts in sentencing a convict can be summarized into four.

1. Reconciliation: the three-way route of justice is aimed at possible reconciliation of the defendant back to the society as probably the victim.

2. Restitution: the defendant is to compensate the victim or their representative.

3. Reintegration: the defendant is reformed with the aim of sending him/her back to the society as a better person. Compulsory education, vocational training, counseling and correctional therapy are targeted towards reintegration.

4. Restoration: lawful and possible attempt is made to restore the victim, defendant and the society to the nearest pre-crime state.

The concept of restorative justice is not alien to the Nigerian Law. The Administration of Criminal Justice Act (ACJA) 2015 gives statutory backing to the concept of restoration justice. There are many provisions of the Act that aid restorative justice. Notable few shall be listed below:

Suspended sentence Section 461

Community service Section 460-466

Probation Section 453-458

Compensation Section 319(1) and 454 (3) (a).

Restitution Section 270(2) (b), 5 (ix), 6(b) and 321.

Rehabilitation Section 401, 467, 468(2)

Treatment Section 298(2), 311(2), 319(1)(i).

Plea bargaining Section 270.

Restorative justice does not encourage crime. There is always a consequence for every unlawful act. Restorative justice seek to reform the defendant in addition to the lawful consequence of his or her unlawful misdeeds.

Jerry Adeyogbe Esq

The notion of reform has led prison systems to be referred to as correctional institutions. Also, the evolution of prison reforms and prisoners’ rights across the globe, the punitive reaction approach paved the way to a societal approach to treat and cure prisoner.

Criminal trial is penal in nature, which implies that there are spelt out punishment for disobedience, thus punishing the wrongdoers is a paramount duty of all civilized states.

Punishment is considered as a means of reducing the incidence of criminal behaviour either by deterring potential wrongdoers or by incarcerating and restraining their ability to perpetrate further crimes.

The present administration of prisons in Nigeria is making an effort of restoring convicts through education, industrial work, vocational training, and engaging in various activities.

In addition, therapeutic methods, meditation, etc. are practiced to bring a prisoner into a more peaceful state of mind to make them betters persons after their jail terms.

One would recommend that other forms of punishment be utilized to curb crimes, for non-indictable offence punishment such as imposition of monetary fine, asset forfeiture, restraining order, community service, among others should be promoted over imprisonment, except where they are no better alternatives.

However, where imprisonment becomes necessary, efforts should be made to ensure that the inmates are not only punished but they are being corrected and encouraged to be law abiding and better citizens.

Some of such efforts should include rehabilitation and reintegration of inmates, monitoring and oversight mechanisms by relevant body, fair feeding of inmates, provision of adequate medical care and facilities, enlightenment programs, creation of recreational and vocational training for inmates among others.

Amoo Babatunde Oluwaseun Esq

The theory of restorative justice has basic principles guiding it, and some say that another way to explain restorative justice is to look at the core principles that govern it. The following are therefore few guiding principles of restorative justice:

1. It views crime primarily as an offence against human relationships and secondarily a violation of the law.

2. Both victim and offender voluntarily participate in the restorative process: This emphasizes the fact that participation in a restorative justice process should be based on the victim and offender’s free and voluntary consent (absence of coercion).

3. The offender must accept responsibility for the offence: For a restorative justice approach to be used, the acceptance of guilt by the offender is not only necessary but essential because without it, what wrong would be corrected? And how would the offender be integrated into society if he doesn’t consider his actions wrong?

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Restorative justice is mostly different from contemporary criminal justice in several ways.

Firstly, it views criminal acts more comprehensively: rather than defining crime as simply lawbreaking, it recognizes the tendencies that offenders harm victims, communities and even themselves.

Secondly, it involves more parties in responding to crime: rather than giving key roles only to government and the offender; it includes victims and communities as well.

Finally, it measures sanctions differently: rather than measuring how much punishment is inflicted, it measures how much harm is repaired or prevented in the community.

 Restorative justice is a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future. The concept provides a very different framework for understanding and responding to crime.

With this concept, crime is understood as harm to individuals and communities, rather than a violation of abstract laws against the state.

Those mostly affected by the crime – victims, community members and offenders are therefore encouraged to play active role in the justice process.

Obada Toyosi Charles Esq

Restorative justice focuses on repairing the harm caused by a crime rather than solely focusing on punishment. Here are the key aims of the restorative concept in sentencing:

Addressing the Harm: The primary aim is to address the harm experienced by the victim(s), the community, and even the offender themselves. This involves giving victims a voice, providing them with support, and addressing their emotional and material needs.

Accountability and Rehabilitation of the Offender: Restorative approaches encourage offenders to take responsibility for their actions, understand the consequences, and make amends for the harm they caused. This can involve apologies, restitution, and engaging in programmes aimed at rehabilitation and reducing the likelihood of re-offending.

Community Involvement: Restorative justice often includes the active participation of the community. This can involve community leaders, support groups, and others to help provide solutions and support for both the victim and the offender.

Healing and Reconciliation: Creating a space for dialogue, understanding, and potential reconciliation between the victim, the offender, and the community. This process can help everyone affected by the crime gain closure and move forward.

Prevention of Future Crime: By addressing the root causes of offending behaviors and fostering rehabilitation, restorative justice aims to reduce recidivism and create safer communities.

In practice, restorative sentencing can take various forms, including:

Victim-Offender Mediation: Facilitated meetings between the victim and the offender where they can discuss the impact of the crime and work toward possible solutions.

Community Reparation: Offenders making amends to the community through service projects or other forms of restitution.

Circle Sentencing: A process involving the victim, the offender, their families, and community members in determining the appropriate restorative sentence.

Oluwambe Adefehinti Esq

Restorative justice is a method of addressing crime, wrongdoing, injustice, or conflict that places a primary focus on repairing the harm caused by the wrongful actions and reinstating, to the extent possible, the well-being of all parties involved.

It embraces a more relational approach to justice by prioritizing the restoration of respect, equality, and dignity within relationships impacted by wrongdoing.

 The term ‘restorative’ is used because it involves employing processes that return agency, ownership, and decision-making power to those directly affected by the harmful event—namely, victims, offenders, their supporters, and the broader community.

Rather than exclusively relying on the state or legal professionals, restorative justice seeks to involve the immediate participants in resolving the harm.

Restorative justice offers numerous advantages for the criminal justice system and all involved parties. The mediation process in restorative justice promotes adherence to negotiated agreements, as the parties actively participate in shaping the agreement.

 This stands in contrast to court-ordered restitution, which reportedly has a low compliance rate due to its perception as a fine paid to the court rather than an obligation to the victim.

Restorative justice programmes enhance the sense of justice within the community and mitigate the repercussions of incarceration on society. Imprisonment can have detrimental effects on the broader community, especially when individuals with familial responsibilities are incarcerated for minor offenses.

In such cases, the children of those incarcerated may suffer from deprivation of basic necessities, leading to potential school dropouts and an increased likelihood of involvement in criminal activities.

It is important to highlight that before the enactment of the Administration of Criminal Justice Act (ACJA), restorative justice principles were not formally integrated into the Nigerian criminal justice system.

However, the ACJA has introduced several restorative alternatives into the criminal justice framework through statutory provisions, as outlined below:

– Suspended sentence (Section 461)

– Community Service (Sections 460-466)

– Probation (Sections 453-458)

– Compensation (Section 454(3)(a))

– Restitution (Sections 270(2)(b), 454(4), 5(ix), 6(b), 321, 341, 342, 401(g))

– Rehabilitation (Sections 401, 467, 468(2))

– Treatment (Sections 298(2), 311(2), 319(1)(c), 401(c)).

In Conclusion offenders bear a personal responsibility to both victims and the community for the wrongs they have committed. Those participating in the restorative justice process jointly share the responsibility for rectifying harm through collaborative action.

The community, recognizing its responsibility for the well-being of all members, including victims and offenders, plays a crucial role in this restorative process.

Benjamin Salami Esq

Sentence” according to the Black’s Law Dictionary, 7th Edition at page 1367 is “The judgment that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer”

The essence of sentencing is the protection of the society through the prevention of crime or the reform of the offender which may be achieved by means of deterrence, elimination or rehabilitation of the offender, as observed by the Court of Appeal (per Oshintokun Oshisanya) in the case of Ali v FRN (2016) LPELR 40472 CA.

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Notably, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In this regard therefore, a court that imposes a sentence shall take into consideration certain principles governing sentencing as provided for instance in Section 384 (1) (i)-(xi) of the Ondo State Administration of Criminal Justice Law, 2015.

Just as enunciated by various schools of thought, and incorporated Section 371 (2) (a)-(h) of the Ondo State Administration of Criminal Justice Law, 2015, the objects of Sentencing include; Deterrence, Retribution, Rehabilitation, Restitution, Restraint, Prevention, Education of the Public and Restorative, but unfortunately, some of these objects have not been achieved. The restorative concept in sentencing as defined in Section 371 2(h) of the ACJL of Ondo state is aimed at restoring social equilibrium or harmony to the society affected by the crime.

However, it is disheartening, that the Nigerian prisons or better put Nigerian “correctional centres” do not portray or fulfil the purpose/mandate for which it was created, rather they have become dumping grounds for convicts/offenders or even innocent persons awaiting trials.

Some of these correctional centres are congested with inmates kept in messy rooms oozing with malodorous smells.

No skill acquisition programme is introduced to reform them.

Needless to say that, community service are not imposed on convicts/offenders in lieu imprisonment to help decongest Nigerian prisons or Correctional centres.

Permit me to start this important discourse by saying that punishment must not only be punitive in nature, it is unfortunate, that when we talk about given punishment to anyone who has committed a wrong, what readily comes to mind is what punitive punishment to give to him/her but this should not be so.

However, there should be a sharp departure from punitive to restorative punishment.

Everyone alike, even at homes, punishment is administered but we need to move away from punitive to restorative punishment, as a matter of fact, there is nobody who is born wicked, people grow into wickedness, therefore, there is the felt need to bring back to the original position of being law abiding. In any matter that involves the sitting of any court, there are basically, two categories in which matters (Cases) are categorized ; viz: Criminal and Civil Cases. Therefore, the word criminal suggests that an offence had been committed against the state because the position of the law is that an offence committed against an individual is seen in the eye of the law has been committed against the state, this is why in the magistrate court we usually find the parties on the charge sheet as COP (Commissioner of Police) versus the name of the suspect or at the high court it is found as State v. the name of the suspect.

When it comes to sentencing, the court has its own discretion to exercise in this matter, most essentially, according to Administration of Criminal Justice Act, 2015, there are factors to be taken into cognizance b y the court and these factors are stated in Section 416 (2) (a) – (k)(a) each case shall be treated on its own merit;(b) the objectives of sentencing, including the principles of reformation, shall be borne in mind in sentencing a convict;(c) an appeal court may in a proper case reduce the sentence imposed by the trial court, especially where it is excessive or based on wrong principles; or an appeal court may increase the sentence imposed by the trial court especially where it is inadequate;(d) a trial court shall not pass the maximum sentence on a first offender;(e) the period spent in prison custody awaiting or undergoing trial shall be considered and computed in sentencing a convict;(f) trial court shall conduct an inquiry into the convict’s antecedents before sentencing;(g) it may be desirable to adjourn for sentencing in order to have time to consider any evidence adduced at the sentencing hearing in accordance with section 311 of this Act;(h) where there is doubt as to whether the defendant or convict has attained the age of eighteen, the court should resolve the doubt in his favour;(i) a defendant may not be given consecutive sentences for two or more offences committed in the same transaction;(j) an appeal court may not increase the sentence of a lower court beyond the maximum number of years the lower court has power to impose; and(k) sentencing to a term of imprisonment shall apply only to those offenders who should be isolated from society and with whom other forms of punishment have failed or is likely to fail.

Restorative justice is an act to problem solving, which in its various forms involves the victim of a criminal act, the offender, their social networks, justice agencies and the community at large. 

It is a theory of justice that emphasizes repairing the harm caused or revealed by criminal behavior. 

The theory of restoration takes a victim- oriented approach to crime that emphasizes restitution for victims. Equally, it focuses on crime and wrongdoing as against the individual or community rather than the state.To appreciate the idea of restorative justice, one must have at the back of his mind that crime is a disturbing situation filled with pandemonium or confusing situation. The idea of restorative justice is a global one which cuts across continents of the world , the international bodies guarantees the following as protection for victims:Right to engage the services of a legal practitioner Right to have guardian or parent present Right to interpretation or translation Right to voluntary participation. 

In conclusion, it will be a very good thing that the judicial focus be shifted from any other type of punishment to restorative type, the best thing that could happen to an accused is that he/she be reformed and that is the whole essence of our adjudicating system. 

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What is restorative concept in sentencing convict?

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