A new type of justice for Nigeria
October 8, 2016
Lagos, Nigeria – The pastor used the Bible to persuade her not to pay her children’s school fees, but to invest $1,500 in his friend’s farm instead. “If you can’t trust a pastor, who can you trust?” the school director from Lagos asks. Now she wishes she hadn’t. For the past three years she has been chasing after her money; going to court nine times already and spending the equivalent of $150 in lawyers’ fees.
The farmer she has taken to court is just as unhappy. When the police arrested him in 2013, he spent three weeks and four days in Lagos’ infamous Kirikiri prison before he was able to make bail. When he returned to his farm, he discovered that his hens had stopped laying eggs. “They’re supposed to eat at seven in the morning so they can lay their eggs, but I wasn’t around to feed them,” he sighs. Since then he has had to appear in court every two or three months. The trip takes a day and costs over $5, which has also hindered his farm.
For the past three years, the school director and the farmer have been embroiled in a seemingly endless court case. Until this morning.
It is the last week of July, and Samuel Ilori Courthouse in Ogba, a densely populated area on the Lagos mainland, has been transformed into a modern day palaver house where hundreds of court cases are being heard by mediators. For the entire week, there are no judges in this magistrates’ court, the docks remain empty and the opposing parties are instead gathered around a table where they will try to resolve their conflict.
“Do you want your money back, or do you want this man in jail?” mediator Olayinka Oyelade asks the school director, pointing at the farmer on the opposite side of the table. When she responds that she does not wish prison upon anybody and that her priority is the money, the mediator continues: “In that case, you’d better settle. When he ends up in prison, you will get nothing. And if he has to go back and forth to court, he cannot make the money to pay you back.”
An alternative justice
The magistrate presiding over the school director’s case had referred it to the Lagos Multi-Door Courthouse (LMDC), an organisation specialising in mediation, which is growing increasingly popular as an alternative way to resolve conflicts in Nigeria’s biggest city.
When the LMDC opened its doors in 2002, it had only one room at the High Court on Lagos Island; now the alternative courthouse occupies almost an entire wing. Since 2009, the LMDC regularly organises Settlement Weeks like this one in Ogba, transforming a traditional courthouse into a mediation centre, hoping to promote the concept, where the parties meet in confidentiality with an independent negotiator, to a wider audience.
The inertia of the Nigerian justice system – the average timeline of a court case is four to 10 years, and following the case through to the Supreme Court can take at least 20 – makes this an attractive alternative. The average LMDC case takes three to five months, and more than half of the cases that have been referred by magistrates take just a single morning to resolve. And being much faster means it is also much cheaper.
A bulletin board on the wall of the entry hall of Kirikiri Medium Security Prison reveals the repercussions of the slow-turning wheels of Nigerian justice. During a visit early last year it read Convicted: 98. Awaiting trial: 2,457. In other words, less than 4 percent of the prisoners had been convicted of a crime.
In some cases an inmate had been detained for a longer period than the maximum penalty for the crime of which they were suspected but not yet convicted. And many of the detainees’ cases were civil, not criminal, anyway. It is these kinds of disputes that the Multi-Door Courthouse is encouraging the judiciary to refer to them during Settlement Weeks like the one in Samuel Ilori Courthouse in Ogba.
With their arms crossed and disgruntled expressions on their faces a widow and her stepson sit at the mediation table. Since her husband, his father, died in 2011, the two have been at loggerheads. The police got involved two years ago when the stepson said his stepmother had sent local thugs to molest him. She was taken into custody and spent a week on remand in Kirikiri.
Since then she has been subpoenaed every couple of months as the court case has dragged on for two years. They haven’t been on speaking terms all this time. But during a morning session at the Settlement Week, mediator Oyelade gets them to address each other.
“I know this issue goes much deeper than the beating,” says Oleyade, as she leans across the table. After she has listened to the sometimes life-long grievances of both parties, the mediator puts all of those aside. She suggests the real problem is the deceased’s inheritance. Five years after his death, the family still hasn’t been able to divide the house the father left his two heirs – the widow’s stepson and her birth son.
“Until that issue is resolved, I don’t see peace coming to this family,” states Oyelade. “Can we come to a solution this morning if we manage to share the estate fairly?” she asks, looking around the table. The stepson nods and the widow mumbles: “Of course. I want peace in the family.”
The experienced mediator always starts a session by explaining the rules. All phones must be switched off; everyone gets time to say their part without interruptions; the tone should remain respectful. “I will allow you to vent your anger, but you should also be willing to see reason,” she says. After hearing them out, Oyelade sends each of the parties out of the room at different times so that she can talk to them separately. In the case of the widow and her stepson, she appeals to their respect for the deceased: what would he say if he saw his loved ones fighting like this? It seems to soften both the plaintiff and the defendant.
“I use what I understand about personal relationships and our cultural background to reason with people,” Oyelade explains afterwards. She used to be a lawyer, but she gave up practise eight years ago when she was introduced to mediation. She was immediately smitten, she says: “To me it comes naturally. When I see a conflict, I feel like settling it, balancing all interests. I feel successful when at the end of the day everyone goes home happy and the parties even maintain their relationship.”
A ‘win-win’ solution
That is the advantage Alternative Dispute Resolution (ADR) has over the conventional administration of the law, according to MDHC-director Caroline Etuk. In her office at Lagos Island High Court, where two sculpted lions guard the entrance gateway, she explains the difference between mediation and litigation: “In court, a judge will decide against one party and in favour of the other. But in mediation both parties are responsible for the outcome, and because of that, no party can come out a loser. Both have to be able to live with it and agree to forego further dispute. It is win-win.”
The alternative form of justice is also more understandable for citizens, Etuk believes: “In a courtroom you are represented by a counsel, in a process quite complex for a non-lawyer. You put your faith in someone else’s hands, and are hardly involved in the result. In mediation, the process is party-driven. Because the people feel involved, the outcomes of these cases tend to be much more satisfactory.”
The school director and the farmer are a good example. Within half an hour, under the guidance of mediator Oyelade, they have reached an agreement. He will pay back her money in monthly instalments, and she will drop the case. Once the mediator has put the settlement on paper, she hurries to the office where eight employees of the LMDC are ready to type and print the agreement, after which both parties sign it. The only thing left now is for the magistrate to legalise the document, making the agreement legally binding. Within an hour, the case is closed.
The school director is relieved that her days of going to court are over. After signing the settlement, she says, “I thank God for this session. If I ever have a dispute again, I will take it to mediation straight away.” The poultry farmer vows he’ll pay. Oyelade made it clear to him that if he doesn’t, the police will again be on his doorstep to arrest him. He is not going to let that happen, he says: “I just want to go back to my chickens.”
An ‘African tradition’
The Lagos Multi-Door Courthouse is the brainchild of lawyer Kehinde Aina. When he graduated from the University of Ibadan’s faculty of law as a young man, he was excited to begin practice: “I couldn’t wait to wear the gown and start the drama.” Aina enjoyed watching American law series’ on TV, and expected the Nigerian courts to be similar. He was disappointed. “It was adjournment after adjournment. None of the cases I did ever saw the light of day,” he says.
This delayed justice is detrimental to society in many ways, the lawyer argues. “Without a quick dispensation of justice, there can be no development.” He explains that investors want to be assured of the sanctity of contracts. Failing that, they won’t be eager to put their money down. Besides being an economic impediment, delayed justice has even graver effects in criminal law, Aina says. “Litigants don’t feel treated justly and people end up being locked up in prison for a long time for all sorts of reasons. Due to the absence of a fair trial and the fact that they hardly have access to court, especially the poor lack any sense of justice in this country.”
The young lawyer felt that something needed to change, but he didn’t know what, until a Canadian firm he was representing in a 10-year-old case suggested mediation. “I had no clue what that was – all we were taught in Law School was litigation,” Aina remembers. So he started reading up on the topic. “It changed my concept about the practice of law. It was the response I was looking for in terms of change. If we could refer cases that could be solved through mediation, there would be more space for real cases in court.”
This was in the mid-90s, and Aina became an indefatigable lobbyist for ADR. He wrote articles and speeches on the subject, but also established an ADR department in his law firm and sent countless propositions to the Lagos judiciary to set up a Multi-Door Courthouse. “At first the responses were cynical, but gradually people began to listen,” he recalls. “The public was so exasperated with the justice system that they were ready to try anything that could be more effective.”
In 2002, the Lagos Multi-Door Courthouse came into being, and when it managed to resolve one of its first cases within a day – a land-related matter involving a former vice president that had been in court for 17 years – its reputation was immediately established.
Since then, many companies – particularly banks – have found their way to LMDC. For mediations between non-corporate parties, it is mostly citizens who have been exposed to ADR practices abroad who bring their disputes. The general public is still unfamiliar with it, Aina admits. That is why initiatives like the Settlement Week are implemented, to promote and explain ADR.
It will take some getting used to, he says. “People still want their day in court. They see justice as equivalent to going to court.” He believes, however, that this will change. “Adversarial litigation is a colonial heritage, and very western. Most African cultures are pro-mediation. Hausas, Igbos, Yorubas and many other tribes all favour amicable dispute resolution. With time, Nigerians will understand and appreciate ADR. It is closer to our culture.”
‘Back on the straight and narrow’
Meanwhile in Samuel Ilori Courthouse, mediator Funmi Obisan is facing three tattooed defendants, and on the plaintiff’s side a motel manager and her barrel-chested bouncer. The suspects are accused of damaging property in a motel not far from the court during a bar fight three months ago. They have all been arrested and thrown in jail over the issue several times. The manager claims that the bottles and plates they threw, wrecking mirrors and walls, caused more than $500 in damage, and says she wants to be compensated. “We wish to make clear to these boys they can’t get away with this,” she says.
One of the defendants has brought his retired father with him. Once Obisan starts discussing payment, the old man in native attire says that he will have to pay as the youngsters do not have the money. He cannot afford more than $25 a month from his pension, he explains.
The mediator shakes her head, suggesting that she doesn’t believe the young men in fashionably ripped branded jeans and expensive sunglasses are unable to pay. She asks them to leave the room so that she can speak with the motel manager. “With that amount it would take them two years to repay you. That is hardly fair. I suspect the defendants have the money, and I will ask the father to step aside,” she tells the plaintiff. She explains that she has been watching the defendants closely and has an idea which one will be most susceptible to reason. “Him, I will address.”
Obisan’s strategy is successful: not much later an agreement is on the table in which the defendants promise to repay the money within two months.
Afterwards, the mediator explains why she is satisfied with the solution. Not only will the manager be compensated for the damages, but it will also keep the young people out of prison if they hold up their end of the bargain, she says. “These are petty criminals now. By locking them up for years, they would have become full criminals. Who knows if this interception will get them back on the straight and narrow.”
‘Narrowing the prison gates’
The number of cases brought to LMDC is growing: in 2005 the mediation centre handled 58 cases, in 2010 there were 274, and last year the number was 2,353. It is such a success that 12 other Nigerian states have followed Lagos’ example, and even the Federal Supreme Court hopes to open its own mediation centre next year. And yet, for a city with tens of millions of residents, like Lagos, the number of mediated cases is not high enough. This is partly because many are still unfamiliar with the concept but also a result of reluctance among the judiciary.
When she first heard about alternative dispute resolution, Eniola Fabamwo, the deputy chief registrar of the Lagos State High Court, was still a judge at magistrates’ court. “I was not a disciple at first,” she remembers. “That changed when I saw how it diminished my workload. It was incredible to see how many cases LMDC managed to settle. And how much time and money it saved people.” Magistrates all over Nigeria lament the staggering number of cases they find on their desks each day.
Lagos State is considering other applications of ADR in criminal matters, Fabamwo adds. “We are looking into ways of narrowing the prison gates. People that don’t belong in prison shouldn’t go there.”
A local police station is running a pilot project in which officers try to reach a settlement between victim and perpetrator before even opening a court case. Of course many criminal cases are not suitable for mediation, Fabamwo explains. “There will be no negotiation about rape or armed robbery. But for land or property disputes and malicious damages, the results are promising.”
When she started referring cases to the LMDC, Fabamwo noticed that judges were not the only ones in the legal profession reluctant to embrace alternative conflict resolution. “Some lawyers felt it was going to affect their income,” she says. They feared their fees would diminish if the endless adjournments became a thing of the past. Which is a pity, she concludes, because the involvement of all parties is decisive for the success of ADR.
Just how an unwilling counsel can ruin a case’s chances at the LMDC became apparent in the dispute between the widow and her stepson. Although mediator Oyelade had come close to a resolution, it was torpedoed at the very last minute by the widow’s lawyer who advised against a settlement. With a sigh Oyelade had to refer that case back to magistrates’ court.
There is, however, a new generation of Nigerian lawyers who were taught about mediation at university and are more open to its possibilities. That much becomes clear at a Settlement Week session of mediator Adenike Adeniji. Even before she can begin explaining the procedure, the lawyers announce that the parties have come to an agreement themselves: the market trader who had paid for boxes of cigarettes with a dud cheque has agreed to refund the missing amount in instalments to the import company. Meanwhile the parties will continue their years-old trading ties, which will help the market woman to raise the money she owes.
“The relationship has been restored to a point that normal activities are possible again,” Adeniji says about the case, as she leans back in her chair. “That is the essence of mediation. No one has to go home disappointed.”
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