Compensating The Victim: Agenda For Legislative Action

Today’s victim cannot seek satisfaction on his own since the State forbids him from taking the law into his hands. Yet, our laws operate to make the victim of crime a loser all the way. Besides suffering the loss or injury, he soon becomes a state witness where he must waste his time and money going to court to witness for government. At the end of the trial, the offender is either set free, sentenced to prison or he pays a fine.

By Hon. Josef Omorotionmwan

Our Justice System as currently structured is patently unjust and leaves much to be desired. The thought of any change here must begin with a critical examination of the relationship between society, the criminal and the victim.

For now, Nigeria is one country where the victim counts for nothing. Elsewhere, people have realized that society has no justification whatsoever to keep taking from the victim without giving back to him.

Originally, crime was regarded as a wrong done to the individual, in which case, the victim and his family could seek vengeance in any way deemed necessary. Over time, government stepped in, ostensibly to act as the agent to the victim, and of course, with promises to provide uniform treatment for cases.

With every effort made, the victim became further alienated because government soon converted its protective efforts into some money-spinning venture for itself.

The separation of civil and penal functions introduces a serious defect to the system of fines, which go entirely to the State, while the injured victim suffers all the hardships of the civil process.

Today’s victim cannot seek satisfaction on his own since the State forbids him from taking the law into his hands.

Yet, our laws operate to make the victim of crime a loser all the way. Besides suffering the loss or injury, he soon becomes a state witness where he must waste his time and money going to court to witness for government. At the end of the trial, the offender is either set free, sentenced to prison or he pays a fine.

Where the offender is set free, he returns to the same community with his victim – now better equipped and more experienced to deal with his accuser, the victim.

It is even worse for the victim where the offender returns to the community after paying some fines to the court.

If the offender goes to prison, government wins for itself, free labor for the duration of his sentence. And nothing goes to the victim!

The point being made here would be better appreciated within the context of a concrete case: In the 1960s, Citizen Okoh was a big-time yam farmer at Oghada, some 60 kilometers, East of Benin City.

At the end of every year, Okoh took his yams to Benin for sale. In one of those expeditions, Okoh lost the entire proceeds from his sale to some swindlers, the area boys of that age.

The swindlers were subsequently arrested and charged to court. The case dragged on. Okoh must travel from Oghada to Benin to appear in court on every adjournment date.

He eventually became impoverished because at a point, he sold all his seed yams to be able to finance his journeys to Benin.

One day, Okoh returned home, jubilating that he had won the case – two of the offenders paid some fines while two were sentenced to prison.

We all joined in the wild celebration where palm wine and “Krola” (the soft drink of that era) flowed freely. There was plenty of “orhue” (native chalk) for the body.

What did Okoh really win? What a Pyrrhic victory! His money was gone; his farm was gone; and his wealth had evaporated!

On the other hand, government had reaped a windfall where it sowed nothing – it pocketed the fines of the two offenders and acquired an enhanced labor-force by an additional two able-bodied men.

With the criminal aspect over, the victim is on his own. Our twisted system now tells him he can kick-start the civil aspect with all the attendant odds.

First, he is totally worn-out by the rigor of the criminal proceedings. Second, many offenders are judgment-proof in the sense that they are too indigent to afford the victim’s claims; and in any case, where the offender is sent to prison, the victim must wait for him to return before civil proceedings can start.

The victim should no longer be satisfied with just seeing the offender cast into prison. In addition to the protection of law and order in the abstract and reform of the criminal; the victim’s claim to restitution should be a third element of punishment.

In the more humane societies, they have the type of restitution, which is civil in character but intermingled with penal characteristics and awarded in criminal proceedings.

There is another form of compensatory fine, where the court asks the offender to pay to the victim an amount over and above the actual loss he occasioned. This practice can be found in many jurisdictions in the United States of America.

Another form of compensatory justice is where the State sets up a pool of funds from which it compensates victims of some peculiar crimes.

This type of compensation, which is civil in nature but awarded in criminal proceedings existed in pre-Castro Cuba.

Here, the State steps into the legal shoes of the offender and undertakes to indemnify the victim following the decision of the court.

In yet another form of compensation, which is neither civil nor criminal in procedure and which applies where the offender is judgment-proof, the victim applies for the intervention of the state and as soon as his application is approved, he is compensated to the extent of the injury occasioned by the crime.

This system has existed in Switzerland since 1937; in New Zealand since 1963; and in the United Kingdom since 1964.

The foregoing experiences from other lands are instructive and will come handy in the overall reform of our justice system.

Meanwhile, charity must begin at home. We are reminded of those cases of brazenly stolen electoral mandates, which are discovered by our tardy tribunal processes sometimes after three years into four-year tenure.  

All we need now are laws that would compel the offender to refund to the victim all the salary and allowances he collected for the three years.

Apart from curbing the natural propensity for election rigging, this practice is also in full accord with the principle of reward and punishment.           

Hon. Josef Omorotionmwan is a public affairs analyst and Chairman, Board of Directors, Edo Broadcasting Service. He can be reached at: joligien@yahoo.com