The fifth in our series of guest columns has been written by Dejo Olowu. Mr. Olowu has been a member of the Nigerian Bar since 1992. He holds a doctorate degree in law from the University of Notre Dame, USA, and is currently an Associate Professor of Law at the Nelson Mandela School of Law, University of Fort Hare, South Africa. His interests are in the broad fields of International Law, Constitutional Liberties, and Criminal Justice Reform. Email Contact: djolowu1@yahoo.co.uk.
by: Dejo Olowu
As most people would know, many African states were former colonies of Great Britain. By virtue of this colonial legal heritage, the conduct of trials and the delivery of justice in these states followed the English common law system; and its adversarial model of justice: which was essentially penal, where the winner takes all, and the superior advocate carries the day.
In my active days as a legal practitioner in Nigeria (an African common law state), I had also been an adherent of this model. The goal of litigation, whether criminal or civil, was constantly to vanquish one's opponents through fiery arguments and witty oral examinations - all and only according to black letter law! This tradition is as old as the colonial legal history of African states of the Commonwealth. This was the tradition in which lawyers were groomed and this remains the dominant model in those states.
However, it was not only in litigation that the adversarial model was manifest. It also radiated through the very process of basic legal education. The law student enters the law school with the mental baggage of media hype about numerous sensational cases. The faces of lawyers shown on newsprint would be only those of the 'winning side.' The law student learns early in his legal training that a lawyer that 'loses' a case is not a good lawyer - reinforcing the warped belief that a lawyer's acceptance lies only in 'winning' cases.
African criminal lawyers fail to recognize that healthy inter-personal relationships among people are still central for building harmonious communities. As the justice sector continues to ignore vital issues such as the roles of the victim, the offender, and the defense and prosecuting lawyers in promoting healing through the criminal process in the interest of all concerned, the society remains estranged and at risk. Accordingly, confidence in the current adversarial criminal justice system has come under threat.
The teachers of law in African common law states also conduct their research based on their background of adversarial juristic thinking; the outcome is a huge mass of adversarial scholarship.
Since I came across the innovative discipline known as "therapeutic jurisprudence", however, my concern has been how to interject the dominant adversarial criminal justice paradigm with the tenets of this cutting-edge concept. In recent time, my pursuit has been about raising my voice for the cause of integrating this discipline or its elements into legal education curricula across Africa, in a bottom-up fashion.
At the heart of therapeutic jurisprudence, as charted by David Wexler and Bruce Winick, lies the goal of using the entire paraphernalia of law and adjudication for transformative justice. In essence, whereas the prescriptive character of black letter law and adversarial legal system defines the human being as an object of law, therapeutic jurisprudence defines law as an object for the human being. For instance, rather than cast an offender in the stereotyped perceptions of 'wrong doer' leading to stigmatization as criminal law would, therapeutic jurisprudence seeks ways of modifying the impact of the conflict by offering deeper investigation into the behavioral causes and phenomena that gave birth to the perceived 'wrong'. In projecting its effect, the end of justice that therapeutic jurisprudence promotes is that which analyses the roles of, and offers benefits to, the victim/aggrieved/complainant, the judge/jury/court, the society, and the defendant/the accused, simultaneously. Contrary to the dictates of adversarialism, the therapeutic lawyer collaborates with his/her client to identify the client's desires, goals and interests, and to realize these through minimal or no exposure to the rigors and technicalities of the law.
I am aware that traditions die hard. However, since African common law states have applied all the tenets of colonial adversarial criminal justice in their societies for almost a hundred years (and more, in some instances), is it not high time that these states reconsider the adversarial approach and a adopt a result-oriented, problem-solving model as therapeutic jurisprudence offers?
Notable Western states of the common law tradition, including Australia, Canada, New Zealand and the United States, and more importantly, the United Kingdom(!), have realized that the application of the conventional techniques of criminal justice were not achieving solutions. In increasing trend, the criminal justice systems in these countries have developed innovative approaches to tackle the antitherapeutic consequences of adversarialism. All these countries now have special frameworks for critical social problems such as offenses relating to sex, drug, alcoholism, family or domestic violence.
While it will indeed be fair to state that enormous efforts have been made by many African states towards reforms in the administration of criminal justice since the 1990s, a quick survey of the case law emanating from several domestic courts in Africa shows that apart from very few exceptional cases, the dispensation of criminal justice generally depict institutionalized attitudes that overly lean towards retribution and deterrence, while the rehabilitative, reconciliatory and restorative aspects of criminal justice are largely ignored, negligible and incipient. I view the prevalent attitudes of African courts, criminal defense lawyers, judges, magistrates, and prosecutors from the perspective of the theoretical underpinnings of the training of legal professionals in Africa.
Here lies the bottom-line of my argument.
Legal education should simply not be about the impartation of legal skills, good as they are, but more about those interpersonal skills including emotional intelligence; meditation techniques; interviewing skills; critical and creative thinking; support skills for victims and witnesses of crime - most of which will involve forming partnerships between the law schools and other disciplines. Happily enough, there are many African law schools with law clinic or clinical advocacy programs that could form the bedrock of a therapeutic jurisprudence culture. The shortfall is that where such programs exist in Africa, they are essentially adversarial legal practice-oriented.
In strengthening the awareness about therapeutic jurisprudence and transforming criminal justice thinking in African common law states, there remains the challenge of training other actors in the criminal justice field across the continent. I contend that an urgent need arises for the training and/or re-training of criminal defense lawyers, state law officers, judicial officers, police officers, law teachers as well as every segment of the society, in general, towards a culture of constructive, problem-solving criminal justice system. This urgent need can certainly not wait.