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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 info
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Number of Pages: 65
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