ABSTRACT
Behind the beautiful forms and theories of criminal
justice and human rights lie a debilitating reality which pervades in practice
and which makes men and nations seek other systems that will work and one of
these other systems being sought is restorative Justice System. The state has a
duty to prevent crime in order to maintain peace and order in society, but the
achievement of these duties are not
maintained only by committing the offender to jail all the time but by
behavioural modification of the offender, restoration of harmony between the
offender and the victims, healing the victim and locus of the crime and
re-integrating the offender to the society. The need to make an offender
accountable for his action through confronting the harm he caused the victim,
and by providing the offender with an opportunity to offer recompense for that
harm the formed based for restorative justice. The advocates of restorative
justice are canvassing that the process (restorative justice) owes much to
recent movements aimed at addressing the failures of the existing criminal
justice system and developing new ways of doing justice. The concept emphasizes
that the society’s response to crime must be moralizing but not rejecting or
stigmatizing. It also canvases that using the techniques or models of
restorative justice such as re-integrative shaming, mediation and reparation
are meant to work on the conscience of the offender in a way that the legal
proceedings do not. This work examined the definition of terms like crime, criminal
justice within the context of the topic, the restorative justice as defined by
various authors. The philosophy and historical movements of restorative
justice, various arguments in support of restorative justice. This paper also examined the failures of the
penal sentencing. It further explains the methods and models of restorative
justice that will proffer alternatives to penel sanction in some cases such as
murder, manslaughter and other serious offences where restorative justice may
be complimentary to the current criminal justice system. The project work also
tackled some challenges that may be found with restorative justice model but
was able to state that if the model is positively applied in some cases like
juvenile offences, family law cases, communal clashes, and even in some
international and political cases and other minor cases, its result will be
enormous compared to what can be obtained in the formal legal proceedings.
TABLE OF CONTENTS
PAGES
Title Page i
Certification ii
Dedication iii
Acknowledgements iv
Abstract v
Table of Contents vi
CHAPTER
ONE
1.1 Background of the Study 1
1.2 Statement of Research Problems 4
1.3 Objective of the Study 5
1.4 Research Methodology 5
1.5 Justification of the Study 6
1.6 Scope of the Study 6
1.7 Synopsis of chapters 7
CHAPTER
TWO
2.0 Literature Review 9
2.1 Meaning of Crime and Criminal Justice 9
2.1.1 Crime 9
2.1.2 Criminal Justice 10
2.1.3 Retribution in the Criminal Justice System 11
2.1.4 Meaning of Restorative Justice 13
2.1.5 A historical Survey of Restorative Justice 15
2.2 A historical Survey of Restorative
Justice 15
2.2.1 The philosophy of restorative justice system 16
2.3 Historical movement of modern restorative
justice system 22
CHAPTER
THREE
3.0 The Survey of Restorative Justice System 27
3.1. Methods of Restorative Justice 27
3.1.1 Victim-Offender Mediation 28
3.1.2 Family Group Conferencing 31
3.1.3 Circles 33
3.1.4 Panels 34
3.2 Theoretical Arguments in support of
Restorative Justice 36
3.2.1 Victims Participation in Criminal Justice
Process 36
3.2.2 Failure of the Criminal Justice Process 40
3.2.3 The need for recognition of indigenous law 42
3.2.4 The arbitrary definition of crime 43
3.2.5 The Theory of Re-integrative Shaming 44
3.2.6 Matza’s Theory of Neutralisation 45
3.2.7 Private Sector Participation in Reducing
Recidivism 46
3.2.8 The Economic Importance of Restoration to
State 47
3.3 Challenges of Modern Restorative Justice
System 48
3.4 The
Benefits of Restorative Justice over Criminal Justice 50
CHAPTER FOUR
4.0 Evaluation of Restorative Justice Process 52
4.1 Establishing Guilty Intention in Restorative Justice 52
4.2 The State, Law and Restorative Justice
System 54
4.3
Restorative Justice System a
Compliment and an Alternative to Penal 55
Sentencing
CHAPTER FIVE
Recommendations
and Conclusion 60
LIST
OF STATUTES 66
LIST
OF CASES 66
INTERNET
SOURCES 67
CHAPTER ONE
1.1 BACKGROUND OF THE STUDY
The modern States have incorporated the fundamental
human rights in their Legislations and governance to such a level that should
guarantee the liberties of man and his hope for social order and justice in
life. But behind the beautiful forms and theories of criminal justice and human
rights lies a debilitating reality which pervades in practice; and which makes
men and nations seek other systems that will work in practice. One of these
other systems being sought is Restorative
Justice System
The contention of restorative justice is that the
criminal justice structure tends to condemn the poor and weak to a perpetual
cycle of criminal behavior, imprisonment (punishment) and revenge, hence unable
to transform the actors and context of crime, having shutout empathy with
offenders, healing for the victims and consideration for relationship.
The advocates of restorative justice are canvassing
that the process owes much to recent movements aimed at addressing the failures
of the existing criminal justice system and developing new ways of doing
justice.
Although the state has a duty to prevent crime in
order to maintain peace and order in society, but the realization of this duty
are not maintained only by committing the offender to jail all the time but by
behavior modification of the offender, restoration of harmony between the
offender and the victim, healing the victim and locus of the crime and
re-integrating the offender to the society.
The need to make an offender accountable for his
action through confronting the harm he caused the victim, and by providing the
offender with an opportunity to offer recompense for that harm formed bases for
restorative justice.
Restorative justice represents a broad social movement
of reforms arguing for change in the way the criminal justice system operates.
The process can be used in juvenile justice, criminal
justice and family welfare/child protection cases. The movement according to
Braithwaite and Strong
has provided resolution and remedy to conflicts and injustices in realms as
diverse as child abuse cases, communal violence, work place negotiation, adult
criminal behavior such as some road
traffic offences, gross violation of human rights and international
conflict.
In recent times, the growing recognition globally,
that the retributive criminal justice system is not always the most appropriate
response to a significant portion of criminal behavior, has resulted to several
distinct social changes including an awareness of the needs of victims and a
more sophisticated evaluation of the limitation of the criminal justice system.
The current reliance on incarceration as a sanction in response to a
significant number of offences has not been overtly successful in terms of
rehabilitation and reintegration. The first decade of the twenty-first century
has witnessed a resurfacing of appeals to traditional non-statist communitarian
modes of justice called restorative justice.
The idea of restorative justice is seen primarily as a
process of reconciling conflicting interests and healing rifts in communities
resulting from harms committed. These harms are viewed as creating obligations
and liabilities, which have to be put rightly by the parties concerned
themselves, the state and its agencies being only minimally involved. Justice, which
is now generally interpreted narrowly as due process, fairness or impartiality
in modern Western legalism need to be redefined with conceptions of respect,
love, equality and freedom as an attempt to restore the dignity of man and
uphold his fundamental human rights.
More so, the penal abolitionists have criticized the
workings of the formal criminal justice on the bases that crime is not the
object but the product of crime control philosophies and institutions. They
also argue that social problems, conflicts and troubles are inevitable part of
everyday life and therefore cannot, or rather should not, be relegated to
professionals and specialists such as the police, prison and judicial officers
that claim to provide solutions to crime committed in the society.
The idea being that when professionals and state agencies intervene, the
essence of social problems and conflicts are taken away and represented in
forms that only perpetuate the problems and conflicts because in adversarial
justice system, both the victim and the offender are passive spectators in
their own case at formal and legalistic court proceeding.
Advocates of restorative justice further suggest that
the abolition of the crime control industry will revitalize the social fabric
by allowing other forms of conflict resolution, peacemaking and community
safety that will be properly resourced.
It should be noted however that, restorative justice
is not a soft option for offenders as the retributivists may have thought,
because the stress on personal responsibility of offenders for harm done to the
victims from whom offenders cannot hide need to be emphasized. The emphasis on
using the techniques or models of restorative justice such as re-integrative
shaming, mediation and reparation are meant to work on the conscience of the
offender in a way that the legal proceedings do not. The concept emphasizes
that the society’s response to crime must be moralizing but not rejecting or
stigmatizing.
This work suggests a circumspective restorative
justice system which will not abolish penal sentencing altogether; but which
will overhaul the whole system with a view to mitigating the pain of penal
sanction where it is deserved by the offender, and assisting victims and
offenders retain good relationship after an offence. This forms the attempt to
bridge the perceived dissimilarity between criminal justice and restorative
justice.
1.2 Statement of Research Problems
The more we elect to hide our small social problems
behind high walls, the more deeply entrenched will be the problem that led
people there. What we have developed after several years of penal policy is a
vast and costly delaying mechanism because imprisonment is used to delay
confronting the real problems facing the community.
The major challenge that underscore this research
study is on how to break the punishment based justice system that currently
dominated our criminal justice system through an alternative means whereby the
legal institutions/actors especially Judges, Magistrates, Prosecutors, Police,
Prison Officials, Politicians, Policy makers and the general public shall be in
the helm of affairs to consider the failings of the retributive criminal
justice and work towards providing alternative to penal sentencing without
breaking the legal system.
1.3 Objective of the Study
The objective of this thesis is to critically appraise
the system and process of criminal justice, make an overview of emerging
paradigm of restorative justice in order to proffer an alternative to the penal
justice system.
This paper intend to urge the State to reconsider the
failings of the retributive criminal justice and work towards providing
alternative to penal sentencing by establishing a viable justice system that is
focused on re-building healthy relationship between crime victims, offenders
and society.
To achieve this aim, this work is to explore and
examine the breath and depth of philosophical arguments, review the theories
and models of this subject area, and take a look at existing historical,
theoretical and empirical works with a view to answering the question: “Is restorative justice a better alternative
to prison sentencing?”
1.4 Research Methodology
This paper utilizes the following sources of
information on research study:
Primary sources
The primary sources relied upon are: The Constitution
of the Federal Republic of Nigeria 1999 (as amended); Criminal Code Act, Cap.
C28 LFN, 2004; Criminal Procedural Act; Evidence Act; Youth Justice and
Criminal Evidence of 1999 of Canada and case laws relevant to the study
Secondary sources
These include text books and articles published in the
various journals relevant to the study.
Tertiary sources
Worldwide Web: the study also relied on information
retrieved from the internet.
1.5 Justification of the Study
The decision to carry out a research on the
restorative justice as an alternative to penal sentencing could not have been
made at any better time than this because of the impact and position taken by
our criminal courts and the entire justice system in opting to penal sentencing
whereas there are alternative ways of doing justice which can encourage a
better society building, healing, respect to human dignity as encapsulated in
section 34 of the Constitution,
bridged the gap of discrimination and separation between the offenders, victims
and society.
This research work will help to set a new dimension
for our courts when imposing sentences to take note of any other facilities for
community service that may be suitable for non-custodian cases.
This paper emphasizes on the informal procedures
whereby increasing access to justice is meted by encouraging victim’s right to
fully participate in the entire legal process being recognized and enshrined in
our justice system.
1.6 Scope of the Study
The scope of this research study is limited to the
appraisal of restorative Justice as an alternative to penal sentences, the
concept, issues and philosophies behind restorative justice.
1.7 Synopsis of chapters
The thesis is divided into five chapters summarized as
follows:
Chapter one
The first chapter gives a background of the study,
statement of research problems, objective of the study, research methodology,
justification of the study, scope of the study, synopsis of chapters
Chapter two
This chapter covers the literature review, meaning of
crime and criminal justice, crime viz a viz, criminal justice, retribution in
the criminal justice system, meaning of restorative justice, a historical
survey of restorative justice, the philosophy of restorative justice system, historical movement of modern restorative
justice system
Chapter three
The third chapter captured the survey of restorative
justice system, methods of restorative justice, victim-offender mediation,
family group conferencing, circles panels, theoretical arguments in support of
restorative justice, victims participation in criminal justice process, failure
of the criminal justice process, the need for recognition of indigenous
law, the arbitrary definition of crime,
the theory of re-integrative shaming, matza’s theory of neutralization, private
sector participation in reducing recidivism, the economic importance of
restoration to state, challenges of modern restorative justice system, the
benefits of restorative and justice over criminal justice
Chapter Four
The fourth chapter captured evaluation of restorative
justice process, the state, law and restorative justice system, restorative
justice system a compliment and an alternative to penal sentencing?
Chapter Five
The
last chapter include recommendations and conclusion.
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