THE RELATIONSHIP BETWEEN FORMAL RULE OF LAW
AND LOCAL TRADITIONAL JUSTICE MECHANISMS
ADE IPAYE
ATTORNEY-GENERAL AND COMMISSIONER FOR
JUSTICE OF LAGOS STATE
A Presentation at the 18th Annual Conference and General Meeting of
th International
the
I t
ti
lA
Association
i ti
off Prosecutors
P
t
Moscow, 10 September 2013
INTRODUCTION
• Rule of Law
• Involves a system of governance based on non-arbitrary rules
and applicable to all in society
• Linked to principles of natural justice whose attributes include
truth accountability and fairness in the protection of rights
truth,
and prevention and punishment of wrongs
• These attributes of formal Rule of Law are in
varying degrees also present in the
traditional justice systems of indigenous
societies
FORMAL RULE OF LAW
• Essential Elements
• Dependent on the existence of effective and legitimate
institutions to lay down and administer the law in such a
way as to
t guarantee
t
personall security
it and
d public
bli order.
d
• Includes a formal mechanism of crime control which
involves the use of state-based justice institutions and
procedures, such as the police, prosecutors, courts and
custodial
i measures, iin the administration
i i
i
off jjustice.
i
THE TRADITIONAL JUSTICE SYSTEM
• Essential Elements
• The traditional justice system connotes structures and
practices that are rooted in the historical experience of a
particular
ti l locality.
l
lit
structures
• It usually consists of a community’s
community s administrative structures,
rules and norms derived from it's history, values and
traditions
• In the context of contemporary justice structure in Nigeria,
y operate
p
as an
the traditional rules and structures may
informal, unrecognised or partially recognised component,
depending on the particular rules or practices in question.
LIMITS OF THE TRADITIONAL
JUSTICE SYSTEMS
• Largely subjugated to Formal Rule of Law
in Contemporary Nigeria
• Supreme Constitution of Nigeria promotes the formal Rule of Law
• M
Many enactments
t
t in
i Ni
Nigeria
i provide
id that
th t in
i order
d for
f customary
t
law
l
to
t
be enforceable, it must live up to contemporary standards of natural
justice, equity and good conscience
• To be enforceable, customary law must not be incompatible with any
(formal) law for the time being in force
• The courts have sometimes had cause to condemn certain customary
rules and practices
HISTORICAL DEVELOPMENTS OF
THE TWO TIERED SYSTEM
PRE-COLONIAL NIGERIA
• Different communities established home-grown
mechanisms for the resolution of conflicts, but
mostt had
h d the
th following
f ll i
common features:
f t
• Peace-making
Peace making or reconciliation was prioritized
• The interest of the victim largely dictated the process as well as
the outcome of the social intervention
• Enforcement of decisions was a combination of social pressure,
exclusion
l i
and
d other
th remedies,
di
including
i l di
apology,
l
compensation for damage caused, compulsory labour and
restoration
COLONIAL INCURSION
• Introduced the subjugation of existing traditional
law and justice mechanisms to western ideas of
justice
• However, through indirect rule, traditional
mechanisms were allowed to continue if they met
prescribed standards
• IIn some cases, customary
t
practices
ti
were expressly
l
recognised in the new laws (e.g. the Northern Penal
Code)
POST COLONIAL NIGERIA
POST-COLONIAL
• Gradual Eclipse of the Traditional System
• Since independence, the policies of Government have
reinforced the English law and justice system as the basis of
Nigerian
i
i
j ti
justice
statutory the
• As all crimes and sanctions must now be statutory,
traditional concepts of crime and punishment are no longer
recognised by the formal system unless they are expressly
i f
infused
iinto the fformal system
CURRENT TRENDS
• Problems in the administration of the formal justice
system have led to an increasing resort to informal
mechanisms E
mechanisms.
E.g.,
g,
• Vigilante groups emerging in different States of Nigeria to provide
security following the perceived shortcomings of the Police
• Victims and witnesses of crime coming forward to say that they are no
longer interested in criminal prosecutions as the matter had been
mediated and settled at home between the families of the accused
person and that of the victim
• The Coroner’s Law continues to meet with resistance from people
who, for customary or religious reasons, believe that an autopsy forces
an unjustifiable delay in burial and amounts to a sacrilegious
desecration or mutilation of the deceased’s body
OBSTACLES TO FORMAL JUSTICE DELIVERY
•
•
•
•
•
•
Undue delay in justice administration
High cost of litigation
Preponderance of technical rules
Institutional failures - overcrowded prisons hardly rehabilitate or reform
Corruption
Illiteracy
• Clash with traditional notions of justice. Examples:
• The right to remain silent
• Adversarial proceedings and perceived inactivity of the judge
• The failure of prosecution on technical grounds
SOME ADVANTAGES OF THE
TRADITIONAL JUSTICE SYSTEM
• Most traditional mechanisms have the following
advantages over the formal system:
• Timeliness
• Flexibility
• Cost effectiveness
• Focus on mediation and resolution
• In addition to the above advantages, some procedures
adopted
p
by
y some traditional structures oftentimes
accord with contemporary notions of natural justice
TRENDS TOWARDS INTEGRATION
• The establishment of government legal aid
institutions with a mandate to explore alternative
methods of dispute resolution, such as mediation, in
the settlement of disputes, whether civil or criminal
• The Magistrates Court Law in Lagos State now
empowers magistrates to attempt settlement of
simple offences and misdemeanours through
mediation or other alternative modes of dispute
resolution
TRENDS TOWARDS INTEGRATION
• The Administration of Criminal Justice Law of Lagos State
also empowers the courts to adopt non-custodial
measures upon the
th conviction
i ti
off offenders.
ff d
These
Th
noncustodial measures are partly based on traditional
notions of ‘punishment’
p
in Nigeria,
g
, including
g restitution
and the imposition of community service
• The same law now enjoins prosecutors to consult victims
where possible in entering into plea bargain
arrangements with defendants.
defendants This creates the
possibility of settlements between suspects and victims
being imposed on the State
CONCLUSION
• Nigeria needs to fashion out its own justice model
which draws on the advantages of the traditional
and formal justice systems
• In particular, as the discourse on victim-centred
approaches to justice begins to take root in the
country I am confident that there is a wealth of
country,
untapped, beneficial knowledge from our
traditional justice systems which can enhance the
formal system
THANK YOU