PROTECTION AND REDRESS FOR VICTIMS OF CRIME IN NIGERIA: AN APPRAISAL OF THE ROLES OF THE POLICE AND THE COURT
CHAPTER ONE
INTRODUCTION
1.1 Background of the Study
The pathetic circumstances of victims of crime in the world have been so worrisome that, Pino Alarcchi[1] once said, “We must agree amongst ourselves that we want a world where there will be no hiding place for the criminals … and where there will be adequate support for their victims”. The essence of the research is vividly captured in the above prelude. Records reveal that before the state took over the provision of security for its citizenry through its official law enforcement agency – the police -, victims of crime were solely responsible for identifying those who wronged them, footing the bills of investigating their crimes and prosecuting the felons when arrested.[2] Thus, where a crime was committed without witnesses, efforts to identify the assailant became the tasks borne by the victims unaided, as no government agencies was responsible for investigating crimes.[3]
Nmerole admitted that, this was the situation in the United Kingdom during the frankpledge era (a system under which each adult member was responsible for the good conduct of the others).[4] And after the Norman Conquest in 1066, though constables were added and saddled with the tasks of guarding the city gates at night, investigating crimes and prosecuting cases still remained a private matter handled by the victims themselves. In the United States, private prosecution dominated criminal justice during the colonial era, and criminal cases were initiated by complaints of private citizens, and the responsibility to pursue the case to its logical conclusion rested primarily with the private citizen who began the process. As a result, he was required to pay the justices’ fees and hire attorney to plead the case, which situation still prevails in the common law nations.[5]
However, in pre-colonial Africa, according to Tamuno, “crime in most societies was viewed as an infraction against the entire community and not the individual victim”.[6] Therefore when crime was committed, all that the victim needed to do was to alert the neighbours, and the entire members of the community, particularly members of the secret society responsible for security, would chase and apprehend the culprit; who would subsequently be tried by the elders’ council and if found guilty, “would be promptly, adequately and publicly punished”.[7] For instance, in the Kanuri speaking area of Nigeria, “communal solidarity, rather than personal gains and successes, held sway in the sphere of defence”.[8] As a result, “whenever and wherever an individual member of the community was attacked, the entire village would rise up in arms in defence of the victim”.[9]
Tamuno also confirmed that, “There was no police force, but rather it was the supernatural sanction of their religion that policed the primordial Nigerian village society”.[10] These, “Indigenous religions had that strong moral code and supernatural sanction that were both able to keep the old village society morally clean and free from crime”.[11] He argued that what ensured a high level of public security and public safety was that, “The people so affected realized that crime did not pay. Besides, neither the high nor the mighty in society
could claim exemption from the sanctions in force in pre-colonial times”.[12] Ndifon similarly affirmed that under the customary legal system, every offence had its own punishment, and “Punishment was often effectively and realistically administered to the wrongdoer”.[13] For instance, for murder, “Punishments ranged from replacement in specie, enslavement, suicide, banishment of the wrongdoer, to payment of specific sum to the family of the deceased victim”. He maintained that, “Justice for the victim or his relatives was the ultimate aim of punishment in pre-colonial African justice system”.[14] To him therefore, it was the introduction of the British police tradition and adoption of the alien court and legal systems in Nigeria and other African countries that abolished these pre-colonial customary legal ideals from the territories.[15]
According to Tamuno, “This alien government recruited its own police to enforce its laws and keep the peace of the imperial crown”.[16] The police system, “Stressed prevention and detection of crime and punishment of the criminal, as against compensation and restitution of the victims which were the essence of the customary legal systems”.[17] The alien police and legal systems emphasised, and still emphasise that, “Complaints must be initiated by individual victims and police must investigate and possibly prosecute the offender, with the victim serving only as a prosecution witness”.[18] From the above analysis, it is obvious that during the colonial era, and still in Nigeria today, the victim of crime, was and still is relevant in the criminal justice process only for his testimony.[19]
In the context of international law jurisprudence, ordinary or conventional crimes are within the national criminal justice system.[20] Therefore, the protection of the right of victims of intentional or ordinary crimes, and affording them justice are, properly situated within the confines of national governments. Hence, violations of rights of victims of crime, through intentional crimes committed by fellow citizens in their private capacities, are outside the realm of international law jurisprudence.[21] Renewed interests in the affairs of victims of crime attracted global limelight, following the pioneering work of Marjory Fry in the early 1960s then a magistrate in England. She had reasoned that, “victims of intentional crimes should be given the same treatment as victims of motor vehicle or work place accidents”.[22] Accordingly, her efforts drew global attention to the need for better treatment for victims of crime. As a result, in 1963, New Zealand started the first State Compensation Programme for victims of violent crimes.[23] This was followed by England with the establishment of the Criminal Injuries Compensation Scheme in 1964, to handle the issue of compensation to victims of crime of violence.[24] Thereafter, similar schemes were introduced in other European countries, Australia and Provinces in Canada.[25]
Majory Fry’s agitations attracted the attention of the World Society of Victimology, which met with United Nations officials in 1982 to discuss ways of ensuring that victims of crime are guaranteed protection and redress, globally.[26] After series of discussions, the United Nations General Assembly (UNGA) in 1985 adopted and implemented the
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.[27] The UNO envisaged that through the Declaration interest in the protection of the rights of victims of crime would spread globally.[28] However, as would be seen shortly, interest in the issue only spread further within the leading countries of Europe and the United States of America. For instance, shortly after the Declaration, England proclaimed a Charter for the Rights for Victims, which required courts to consider restitution from the offender to their victims on a routine basis. In 1995, the Criminal Injuries Compensation Act was enacted, yet still, in 2001, the Home Office in its Report, entitled, “Criminal Justice: The Way Ahead”, revealed that,”many victims felt that the rights of the accused take precedence over theirs in criminal proceedings”.[29]
Recently, Dame Helen, the Chief Executive of Victims’ Support in England equally lamented, “We believe an entirely new way of thinking about crime is needed – one that recognises the needs of victims of crime as the responsibility of the whole community, rather than leaving people to suffer in silence while we focus on offenders”.[30] She argued rightly that, “Crime ruins lives, people suffer direct physical and financial losses, including severe, and often long-lasting emotional and psychological trauma”.[31] She affirmed that this situation is often frequently made worst by, “insensitive treatment and a lack of understanding from the agencies with which victims come into contact”.[32] The experience narrated by Dame Hellen, it is observed, is a typical phenomenon of all victims of crime in Nigeria. For instance, at most police stations in Nigeria, their complaints are often not responded to promptly and sometimes when done at all, it is at a heavy price borne by the victim. In the USA, one of the significant achievements of Majory Fry’s agitations, it has been observed, is that, “Taxes and fines on corporate criminals are employed in services and awareness through the offices for Victims of crime (OVC)”.[33] Also the court in Payne v Tennessee[34] recognised and approved the right of victims to make, “victims’ impact statements” in the sentencing phase of criminal trials. This development has become an added impetus to the struggle for the redress for victims of crime in the United States.
In 1998 the United Nations General Assembly approved the Guide for Policymakers and the Handbook on Justice for Victims, which was adopted in 1999,[35] to facilitate the implementation of UNGA 1985 Basic Principles.[36] This was done in furtherance of her efforts to ensure that victims of crime are properly protected. Equally in Europe, the Council of European Union in November, 1985, approved the Council of Europe Ministers’ Recommendation R (85/11) of 1985 which deals specifically on the issue of victims.[37] It is regrettable to observe that neither the African Union, through its Charter,[38] nor African countries, including Nigeria have been positively influenced in this regards as their counterparts in Europe and America, with regards to initiatiating legislative measures to cater for the interests of victims of crime.
In Nigeria, once crime is committed against, or its commission is suspected by any individual, the individual is enjoined to report such to the police for their investigation.[39] This action by the police an obvious agency of government portrays the victim as not having been completely abandoned by the state. However, mere investigation of crimes is viewed as inadequate to carter for the rights of the victims. It is therefore advocated that special laws, boards and or commissions, that would adequately accommodate the rights of victims be established to handle their issues. Today in Nigeria, as in other African countries, it is not in doubt that there are numerous international and national non-governmental organisations, etc. whose sole task is struggling for the protection and redress for victims of abuse of power. It is ironical that the victims, who often suffer both physical and psychological harms as a result of the intentional and unlawful commissions or omissions of private citizens, who deserve more attention, are ignored. It is therefore proposed that governments, both at the federal and state levels, relevant non-governmental organisations and other groups, should re-focus on, and re-direct their attentions to the plights of victims of crime.
By virtue of both the Constitutional and statutory provisions,[40] the Nigeria Police force, as an institution of government is vested with the arduous responsibility of, “prevention and detection of crime, apprenshion of offenders and protection of life and property” of all Nigerians. It is thus rightly affirmed that, the Nigeria police is, “structured organisationally and psychologically to protect the society from the criminal elements and other miscreant” within the society. Therefore, where there is no special legislation, as it were, for protection of the victims of crime in the Nigeria, the police should not be encumbered or obstructed, but should rather be encouraged by all, in the discharge of their duties. However, because of the apparent corruption and ineptitude of the present crop of police officers, asking Nigerians to cooperate with the police would tantamount to an uphill task. It is believed that since the police belong to the citizenry, the onus is therefore on the people to demand for the kind of police they really need; and this cannot be realised through the current abhorrence of and apathy towards the institution.[41]
Furthermore, it is articulated that, the fact that the police have fallen short of public expectations, does not warrant the seemingly disdain and hatred with which the officers and anything that associates with them is regarded. Sometimes, this perception has caused grant of court orders that turn out to disrupt criminal investigative processes; prohibit the arrest of reasonably suspected offenders, and even set free those in police detentions unconditionally,[42] and in total disregard of the law;[43] assumingly in the pursuit of protection of the purportedly breached rights of the applicants.
It has rightly been asserted that, “The essential purpose of human rights jurisprudence is to ensure the effective protection of certain fundamental entitlements of all human beings everywhere without distinction”.[44] Therefore, if innocent victims of crime are human beings, it is undeniable that whenever their fundamental human rights are breached by fellow private individuals, they also are entitled to be accorded adequate protection and redress. Therefore, it is strongly argued that the release on bail of reasonably suspected and arrested criminals, without hearing from the victim, terminating police investigative processes through court orders; and the inability or unwillingness of the courts, the police, highly placed political office holders, top government officials and chief executives of government parasatals, to promptly and effectively bring perpetrators of crime to book, including grant of Presidential pardons and amnesty to jailed criminals, contribute much more to the escalation of corruption and other criminal activities in Nigeria, than the supposed police corruption – the recent oil subsidy[45] and the Pension‘s fund scandals,[46] are clear examples. Events like these contribute more to the victims’ despondency and create the impression that it pays to be a criminal.
1.2 Statement of Research Problem
Victims of crime in Africa and in Nigeria in particular from the inception of colonialism, have always been relevant only for the purpose of successful prosecution; with their needs, interests and rights accorded little or no concern by the operators of the criminal justice system. The several non-governmental organisations, civil society and other community-based groups in Nigeria are concerned with the protection and redress for the suspect, accused persons and or prisoners. The Nigeria Police as an institiution of the executive arm of government, as earlier stated, are saddled with several duties, [47] which they have performed below the public’s expectation, supposedly because of corruption, ineptitude, impunity and incompetence.[48]
That these allegations are true are incontestable; a cursory flip through the dailies and social media will attest to this, and most unfortunately, not too long ago, an Inspector-General of police was jailed for corruption. However, a brief for the police is not contemplated here, but at the same time, it is apt to observe that often persons police reasonably suspect of crimes are prohibited from being arrested; and sometimes those already arrested and detained are ordered by courts, to be released on bail unconditionally. As a result, the criminal investigative processes are thwarted and aborted, and the complaint of the victim is abandoned,[49] and the suspected person now set free, and seemingly protected by the law, goes about unleashing other heinous crimes on the society and his victim in the initial case now left at his mercy.[50]
1.3 Research Questions
- What impact would judicial interference in criminal investigatory processes have on the victim, criminal justice system and the society as a whole?
- When criminal investigative processes are aborted through judicial fiat, is all the parties afforded justice?
- When costs are awarded against victims for allegedly breaching the rights of suspects, what message/messages do courts send to the society?
- Is there any Special Law for the protection of victims of crime in Nigeria?
- What unique rights do victims of crime possess that require protection?
1.4 Objectives of the Study
The main aim of this study is to appraise the roles of the police and court in the protection and redress for victims of crime in Nigeria. While its objectives are:
- To ascertain the legality and constitutionality, or otherwise, of injunctive orders against police investigative processes.
- To examine the adverse impacts of premature release on bail of suspects on the victims of crime, the criminal justice system and the society at large.
(3) To examine the rights of victims of crime.
(4) To examine comparatively the use of police powers of arrest and detention and the treatment and handling of arrested persons in United Kingdom, the United States, India and Nigeria
(5) To examine international, regional and national legislation on protection and redress for adults and children victims of crime and
(6) To make appropriate recommendations.
1.5 Significance of the Study
Against the background that protection and redress for victims of crime have attracted global attention, and emphasis and focus had since the 1960s, shifted to “restitution and compensation” to victims in Europe and Americas, except Africa; and in view of the fact that everyone is a potential victim of crime, it is opined that there is urgent need to initiate measures to ameliorate the plights of victims. The research is immensely valuable to both the federal and states’ executives, and federal and states’ legislatures. The research enjoins these government functionaries to re-focus their respective roles and responsibilities towards ensuring that adequate measures are put in place to protect and redress victims of crime in Nigeria, as is in vogue in other jurisdictions.
The legislatures in particular, are re-awakened to grasp the significance of their law making roles, and thereby come up with relevant legislation in support of the subject matter of this research. The initiative of Senator Ganiju Olarewaju Solomon, for sponsoring the “Witness Protection Bill” now before the National Assembly is commended and applauded. It is noted that the Bill when it becomes an Act, aims only at protecting citizens who volunteer useful information about perpetrators and sponsors of violence and insecurity, and not protecting the rights of victims of crime per se. It is prayed and hoped that the parliamentarians will insert therein adequate provisions for the protection of the rights of victims in the standpoint of the 1985 UN Declaration.
Similarly, the executives at all the tiers of government will hereby realise the imperativeness of creating relevant commissions and boards to handle victims’ related welfare issues. Correspondingly, non-governmental organisations, civil society groups, town and village-communal groups now recognise the need to re-focus their energies and resources in fighting for the protection and redress for victims of crime. Furthermore, judges, prosecutors and defence attorneys will find the work useful, as it reminds them of their unique roles in this regard. Finally, the general public, Institutions, Human rights groups, scholars and researchers in Constitutional law, International Human Rights Law and Criminology will find the research useful as an authoritative source of material for further research.
1.6 The Scope of the Study
The research begins with an examination of the position of the law on protection of victims of crime in Nigeria and afterwards veers into a comparative analysis of the position in Europe with particular emphasis on the activities of the Council of Ministers of European Union. The position in the United States where there is adequate legal regime on the protection and redress for victims of crime is examined as a basis for recommendations for improvement of the situation in Nigeria in particular and Africa in general. It is observed sadly that, in Africa, there are no serious legislative efforts regarding protection and redress for victims of crime as there are in Europe and the United States; and the scanty provisions available in their primary criminal procedural rules is out of tune with reality, and the judges hardly apply them.
It is observed that African countries are signatories to a signifant number of international and regional human rights instruments, namely, Universal Declaration of Human Rights (UDHR) 1948, International Covenant on Civil and Political Rights (ICCPR) (1966), International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966), and the African Charter on Human and Peoples’ Rights (1981), with flavor for the protection of human rights. Other allied instruments include the United Nations Declarations, Recommendations and Resolutions, and particularly the 1985 United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which deal strictly with the issues of victims of crime. The non-legal bindingness of United Nation General Assembly’s Resolutions, Declarations and Recommendations, including, “UNGA 1985 Declaration of Basic Principle” is not in doubt, but it is asserted that nations would not be prejudiced for implementing this Declaration, which aims at securing the rights of their citizens, which have been violated without any fault of theirs.
1.7 Research Methodology
The writer employs the analytical, comparative and non-empirical research methodological approaches, which is mainly a library based research whereby references are made to existing legal materials, such as textbooks, newspapers, seminars and other papers. Other materials include statutes and universal and regional human rights instruments. Consequently, the Nigerian Constitution 1999 (as amended), African Charter on Human and Peoples’ Rights,[51] The Criminal Procedure Act,[52] The Police Act[53] and The Criminal Procedure Code[54] are consulted and analysed. The Universal Declaration of Human Rights,[55] the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985(‘Basic Principles’)[56] are examined. Other documents also examined include the UN Model Law on Justice Matters involving Child Victims and Witnesses of Crime, European Convention on Compensation of Victims of Violent Crimes 1983 and Council Rec No. R (85)11.[57] A comparative approach is adopted to show what obtains in other jurisdictions to evaluate the reasonability of adopting similar practices in Nigeria.
1.8 Chapterisation
The research is structured in five main chapters including sub-headings. Chapter 1 is the introductory chapter and sets out the background to the study, statement of research problem, research questions and objectives of the study, the significance and scope of the study and definition of key terms. The chapter also discusses research methodology and structure of the study. In chapter II, literature related to the topic and associated areas are appraised in the following sequence; the history of doing justice to the victims, human rights as rights for all, injunctive orders and the principle of fair hearing and corruption and the criminal justice system. Literature on the constitutionality or otherwise of disruption of criminal investigative processes are also reviewed. This chapter concludes by affirming that it is more beneficial to the security of any country if attention is focused more on the protection and redress for victims of crime, while all perpetrators of crime are promptly sought out, publicly and proportionately punished for their crimes in accordance with the the law.
Chapter III comprehensively examines protection and redress for victims of crime. Consequently, the origin and history of human rights, the relevant instruments on the protection and redress for victims, and internationally recognised rights of victims are examineded. The efforts of protection and redress for victims in Europe and the United States of America, and Nigeria are analysed comparatively. The chapter equally examines instruments on the protection and redress for victims of abuse of power, the various rights of suspects, accused and convicted persons. In Chapter IV the roles of the Police Force and the court in protecting and redressing victims of crime in Nigeria are examined. Hence the origin of police and policing in Nigeria, the United Kingdom, and the United States is thoroughly examined. The chapter further discusses the powers and duties of the police, with particular emphasis on the powers of arrest and detention of suspects, so as to establish whether or not the Nigeria police have deviated from the established norms in this regard. The chapter also examines corruption in the Nigeria police force and the various constraints confronting policing in Nigeria.
The functions of court, origin, principles and conditions guiding the grant of injunctive orders, the dilemma and implications of obeying court orders against criminal investigative processes are also examined. Selected decisions of some unreported suits dealing with interim injunctions against criminal investigations, the abuse or misuse of ex parte order and the Court of Appeal’s perception of the indiscriminate grant of ex parte orders, are equally reviewed. Finally, punishment as a negation of human rights and the necessity of punishment in the modern dispensation are examined. Chapter V the concluding chapter overviews the study and makes recommendations.
1.9 Definition of Terms
Legal concepts are prone to several meanings, thus it is always desirable that writers give working definitions to concepts and terms used in their work, for this same reason, the following terms, phrases and concepts bear the meanings herein ascribed to them.
1.9.1 Victims of crime
The United Nations in UNGA R40/34 defines victims as persons, “who individually or collectively have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights through acts or omissions that violate criminal laws operative within member states including those laws proscribing criminal abuse of power”.[58] In her Handbook on Justice for Victims, a victim is defined as “a natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss, directly caused by acts or omissions that are in violations of the criminal law of a member state”.[59] However, for the purpose of this research, “A victim of crime is a person who is sacrificed, injured, destroyed, cheated, traumatised, defrauded, or even killed as a result of the intentional unlawful commission or omission of another private individual, which act or omission is punishable under the criminal law of the society in question”.[60]
1.9.2 Victims of Abuse of power
These are persons who, “Individually and or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognised norms relating to human rights”.[61] They are seen in this research as persons who are suspected to have violated the rights of other citizens, whose acts or omissions constituting such violations have been reported to the police, and whom the police have arrested and detained, or who the police are looking for inconnection with such criminal reports.
1.9.3 Rights of Victims of crime
Acording to Waller, different categories of victims have different kinds of needs, interests and rights. However, van Djik affirmed that the the rights listed hereunder are recognised under UNGA R40/34.[62]
- Right to the protection of his life and property and lives of his relatives and dependants.
- Right to be treated with dignity and compassion and to be protected from [63]
- Right to be informed of available assistance and of his role[64] as a witness in the
justice process.[65]
- Right to be informed about status of case, to be heard and to express his views and concerns,[66] to safety, privacy and reparation.[67]
- Right to be reasonably protected from the accused person during the justice process.[68]
- For victims of sexual abuses, right to special preventive measures and for child victims, the right that whatever is done is in the child’s best interest[69].
1.9.4 Criminality in Nigeria
According to Emile Durkheim, “Crime is normal because a society without crime is utterly impossible”.[70] The sociologist never meant that nations and governments should g
