The Advocate By Onikepo Braithwaite Onikepo.braithwaite@thisdaylive.com
The Advocate
By Onikepo Braithwaite
Onikepo.braithwaite@thisdaylive.com
Justice
The Preamble of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) provides inter alia, for the promotion of the good government and welfare of the people on the principles of freedom, equality and justice. Section 6 of the Constitution then establishes the various courts to dispense justice, while Section 23 thereof includes justice as one of the national ethics of Nigeria. In Umar v State (2024) LPELR-62409(SC) per Ibrahim Mohammed Musa Saulawa, JSC, the Supreme Court held thus: “Invariably, the term justice denotes the fair treatment of people. The quality of being fair or reasonable in one’s disposition….It equally denotes the fair and proper administration of laws; rule of law as against anarchy”.
Death of the 37 Alleged Illegal Miners
I would like to use the death of the 37 alleged illegal miners held in the Minna, Niger State detention facility of the Nigeria Security and Civil Defence Corps (NSCDC), to make my illustration about justice. They died after two days in NSCDC custody. The How and Why is yet to be established, but, how ever it may have happened, 37 people are dead. It could be murder or manslaughter – see Sections 315-317 & 220-222 of the Criminal Code (CC) and Penal Code (PC) respectively; or reckless endangerment – see Sections 343 & 196 of the CC and PC respectively, or something between both extremes.
When I saw a news story stating that the suspended Niger State Commandant of the NSCDC, Suberu Aniviye, asked for forgiveness, I was perplexed. Was he asking to be let off the hook, without being held accountable for the death of the 37? Or was his show of remorse/apology sort of an allocutus in advance, for when the matter goes to court, in case he is convicted? I realise that such ‘repentance’ is one of the consequences that may occur, in a Nation that mixes religion with State. Crimes are reduced to sins, and sins are elevated to crimes! In other countries, Aniviye would have been sacked immediately, because the buck stops at his table. In Usoro & Ors v Usoro & Ors (2024) LPELR-62188(SC) per Helen Moronkeji Ogunwumiju, JSC, the Supreme Court held thus: “In this case where the parties have come to the throne of judgement for resolution, it is not justice to send them back empty handed. That is an invitation to anarchy”. Though this case is different from that of the death of the 37 alleged illegal miners, the principle remains the same – not giving the dead justice by ensuring that those who have wronged them are punished, is unfair to the victims and leaves them empty handed.
Let us examine the possible offence the alleged illegal miners could have been charged for – an offence for the unlawful exploration, mining, quarrying, removal, possession or disposal of minerals (without mineral title) under Section 131 of the Nigerian Minerals and Mining Act 2007 (NMMA). The offence doesn’t carry the death penalty, and even if it did, the Defendants would have to have been found guilty and given the death sentence, and such penalty would be appealed all the way to the Supreme Court for affirmation (see Sections 233(2)(d) & 241(e) of the Constitution), before it could be carried out. As far as bail is concerned, even if the 37 were charged for murder, by virtue of Section 161 of the Administration of Criminal Justice Act 2015 (as amended)(ACJA), a High Court Judge could grant them bail in exceptional circumstances; and, if their offence was non-capital but the punishment exceeds three years imprisonment (or less), they would also be entitled to bail, unless they didn’t meet the criteria for the grant of bail (see Section 162-165 of ACJA). Their right to life and not to be subjected to torture or inhuman treatment, were also guaranteed by Sections 33(1) & 34(1)(a) of the Constitution.
The essence of justice is that, each person receives what is due to them under a set of rules that are applied consistently, impartially, and with regard to both the wrong done and the interests of those affected by it. The response to a wrong, should bear a reasoned relationship to the wrong itself; like cases should be treated alike, and punishment should be proportionate to culpability.
Forgiveness
Forgiveness is not a formal part of the ordinary justice system. It is a moral, religious, or interpersonal act. It is not an element the court applies, or requires. Even in the Holy Bible Luke 23:39-43 – the criminal who hung next to Jesus, and was also under the death sentence of crucifixion; Jesus didn’t stop his crucifixion. In fact, the second criminal on the other side of Jesus, stated that they were receiving the just punishment for their deeds. But, Jesus obviously forgave the one who sought his intervention, and promised that the criminal would be with him in paradise that day (once the sentence of execution was carried out and his death followed). Forgiving Mr Aniviye and his staff, without holding them accountable for the deaths of those in their custody, is antithetical to the essence of justice – it is injustice.
These requests for forgiveness of so-called repentant terrorists and violent criminals, sound bizarre. If granted, it is partial to the perpetrators and unfair to the victims – see Umar v State (Supra). Even a pardon by the President (see Section 175 of the Constitution) or a Governor (see Section 212 of the Constitution) which is the closest formal mechanism to forgiveness, is usually granted after a Defendant has been charged, convicted, sentenced and served time in prison, and not before they are held accountable. Sometimes, it is granted after the Defendant has completed the sentence, as in the case of Hon. Farouk Lawan who was pardoned by President Bola Tinubu, GCFR, after he had completed his sentence. So, for example, going by these constitutional provisions, the call for a pardon for Nnamdi Kanu, even before his court case had been completed or he had been sentenced, was premature.
Restorative Justice
We are aware that the restorative justice approaches, have long been used in the Western world. Restorative approaches emphasise repair of harm, victim participation, apology or acknowledgement, and reintegration rather than pure punishment. In facilitated processes, a victim may choose to forgive, but that choice is personal, and does not bind the State or extinguish the public interest in prosecution. Restorative justice (including victim-offender dialogue/mediation) is far more common for juveniles, minor property offences, or lower-level non-violent cases.
For homicide and other severe violence, it is another matter: Where they do occur in murder cases, they are almost always post-conviction, voluntary, and initiated by the victim’s family (or co-victims). The offender has already been convicted, and is usually serving a long sentence. The dialogue is intended for information, accountability, expression of impact, and possible healing – not to alter the sentence, or replace punishment.
The Nigerian Version
So, it would be accurate to say that the only thing that connects the Nigerian version of forgiveness and that of westernised countries, is the word ‘forgiveness’. Besides that, the Nigerian version doesn’t fit into the known descriptions of restorative justice or reparative responses to crime. Here, they try to use it to replace the punishment.
Unlike USA, forgiveness and repentance in the Nigerian context feature in conversations surrounding violent crimes and criminals, and they show up even before legal proceedings are instituted. This is not what it was designed for – to let off violent offenders instead of holding them accountable. In Nigeria, forgiveness and repentance are becoming tools to escape liability and accountability for grave offence/heinous crimes, particularly those in which there is loss of life. We hear those words used regularly in cases concerning banditry and terrorism. Politicians appear to be using this questionable version of the system, either when they are at a loss for what to do to curb these criminals and their activities, or simply to gain popularity and secure votes. For instance, Nnamdi Kanu has a strong followership in the South East, at least among the Youths. Supporting him and advocating for his release in a so-called ‘political solution’ despite the heinous crimes that have allegedly been committed by IPOB/ESN against their own people, may earn the support of his many supporters. Just like a ‘wanted’ felon like Bello Turji in the North, whose whereabouts may be known by some, is yet to be brought to book.
Restitution
Restitution in law is another remedy, under the broad idea of reparative responses to crime. It is directed at undoing unjust enrichment, or restoring a person to the position they would have occupied but for the wrong. Its essence is corrective, rather than punitive: it seeks to reverse the transfer of value, or to compensate for the loss of a legally protected interest, so that the wrongdoer does not retain the benefit of the wrong and the victim is not left to bear it. In cases where the offence involves dishonesty, corruption and theft, there can be restoration or restitution.
But, not all offences can be restituted in any meaningful sense. Offences that destroy or permanently impair what cannot be replaced – murder, rape, grievous bodily harm, permanent disability, or the death of a child, cannot be undone by payment or the return of property. A life that is lost, cannot be restored, nor can a body part that is lost in a brutal attack, be replaced. See for instance, the recent attack on a female Australian Member of Parliament, Helen Haines, which resulted in the amputation of her two legs – in such cases, the harm cannot be repaired. Even the payment of compensation to the family of a deceased, or to a permanently disabled person – money may mitigate consequential losses or express recognition of harm, but it does not restore the life, the bodily integrity, or the non-economic interest that was taken.
Conclusion
The deaths of the 37 alleged illegal miners in NSCDC custody in Minna expose, in the starkest terms, what happens when the requirement of accountability is displaced by the language of forgiveness. Their right to life and not to be subjected to torture or inhuman treatment, were engaged the moment they entered detention. Those rights are not satisfied by an apology from Aniviye under whose watch they died, nor by any subsequent request for forgiveness. This attempt to trivialise grave offences, mustn’t be allowed to thrive. As the Supreme Court observed in Umar v State (Supra), justice denotes the fair treatment of people and the proper administration of laws. Fair treatment of those who died requires that the circumstances of their deaths be properly investigated, that responsibility be established, and that any person found to have breached a duty of care or to have acted unlawfully, be held to account. Anything less, is an invitation to treat custody deaths as regrettable, but unpunished events.
There is a further injustice, in the pattern that has emerged. Persons accused of relatively minor offences, such as the theft of a phone, can remain in custody for years because they cannot meet the conditions for bail, while some who are alleged to have taken lives are offered the possibility of release under the banner of repentance. This is not the consistent and impartial application of rules, that justice requires. The same Constitution that guarantees the right to life and to fair treatment, also establishes the courts to dispense justice according to law. Where 37 persons die in custody within two days, the proper response is investigation, prosecution where the evidence supports it, and punishment commensurate with the culpability established. To short-circuit that process in the name of forgiveness, is to deny the victims the fair treatment of the law itself.