Perspectives of the Nigerian Criminal Justice System on Neurodiversity

CONTRIBUTOR: LILIAN EKU

INTRODUCTION

Variety is the spice of life^[1] and the proof that different beautiful colours can co-exist, but this can all turn sour if there are no systems to cater for the unique features and perceptions of these differences. Neurodiversity is one area that enhances these unique qualities. It is argued that no two persons have the same cognitive structure or reasoning^[2] and 15-20% of the world’s population exhibits some form of neurodiversity, and one in every seven persons in the UK is neurodivergent.^[3] Based on this, it is pertinent that the concept is analysed in the light of the criminal justice system for a proper understanding of the system and society.

UNDERSTANDING NEAURODIVERSITY AND ITS IMPLICATION ON THE CRIMINAL JUSTICE SYSTEM

Neurodiversity stems from two words, ‘neuro’ and ‘diversity’, neuro means of the nervous system and diversity is a measurement of the degree of variability in a specific location.^[4] It would then mean the measurement of the degree of variability of the nervous system.

The term is attributed to Australian sociologist Judy Singer,^[5] who in the 1990s through her doctoral paper brought to light the concept of neurodiversity. She claimed that “neurodiversity refers to the virtually infinite neuro-cognitive variability within earth’s human population. It points to the fact that every human has a unique brain and neurological makeup.” It refers to the concept that neurological differences are to be recognised and respected as any other human variation.^[6] Some categories in neurodiversity include autism spectrum disorder, dyslexia, Attention Deficit/ Hyperactivity Disorder, Tourette syndrome, Dyspraxia, Obsessive-Compulsive Disorder, and so much more.

On the other hand, the criminal justice system refers to the multifaceted nature and complex network of government institutions, policies and practices established to maintain social order, enforce the law and administer justice.^[7] It is posited that there are two models: the crime control model and the due process model, which, as the names imply, have different focuses.^[8] However, a good system should focus on both which should focus on both reflecting both core functions and purpose such as restoration, incapacitation, rehabilitation and so on.^[9] The core components of the Criminal Justice System are the law enforcement bodies, judiciary, and correctional facilities while others can be the legislators, prosecutors, forensic/support services, victim services and so on. The criminal justice system begins from the moment a complaint is made, till the last day of trial and judgment.

The Nigerian Criminal Justice System follows the due process model; this means that it emphasizes the protection of human rights and an accused is presumed innocent until proven guilty and this in no way means that the system does not strive to prevent crime.^[10]

INTERSECTIONALITY OF THE NIGERIAN CRIMINAL JUSTICE SYSTEM AND NEURODIVERSITY

Intersectionality refers to the stereotypes, the challenges and the unique experiences of neurodivergent individuals within the criminal justice system. It encompasses how a neurodivergent person would be perceived, treated and dealt with in the system. In this part, attention will be paid to the victim and offender status as most of this work will relate to them.

THE VICTIM

Generally, and in what seems to be global, the victim in a CJS is often overlooked with limited rights accrued to him.^[11] Even when Chapter IV of the Constitution^[12] provides several rights for all, within the context of the CJS, only rights that pertain to the offender are sought to be upheld, he is presumed innocent until proven guilty while every word of the victim is analysed to ensure that he is a befitting witness. When the accused is finally proven guilty, some laws protect his rights and person within the prison and this is not so with the victim as where the laws stipulate the victim be compensated, the courts have failed to uphold such provision.^[13] Also, crimes even when against the individuals, are all viewed as crimes against the state and little importance is given to the victims except as witnesses. Moreover, there is no proper witness protection scheme in place.^[14] As seen, one can go on and on about how the NCJS has failed to cater for the rights and safety of the victim.

In relation to neurodiversity, there is no gainsaying the fact that a system which is oblivious to the plight of the neurotypical or ‘normal’ victim has no defined structure on how to proceed with the neurodivergent. Creating an environment that is neurodiversity friendly would entail officials being sensitive to the needs of the victim, tailored conversations that meet the language specifications of the individual, upholding the rights of the specially-abled, enacting laws to protect them as witnesses, allowing their opinions to be heard, offer counselling where necessary and compensate them where the law allows for it.

THE OFFENDER

As already alluded, this party has several rights that when properly upheld, protect his/her integrity.^[15] Although, Nigerian law enforcement agencies still have a lot to do with regard to the protection of these rights,^[16] as can be gleaned from the endSARS movement of 2020,^[17] and more recently, the case of the Department of State Security arresting an offender while the court was in session even when the law states otherwise.^[18] Because this is a sensitive party to the CJS, a step-by-step analysis of every requirement at the different levels of the interaction with the system will be necessary.

• SUMMONS/ARREST

The law specifies how summons are to be served,^[19] in relation to neurotypical and persons without language or speech limitations. With regards to neurodivergent, a major step that can be taken differently is where the party is available, the officials are to be understanding and tender in explaining the contents of the document and also ensure that no form of trigger is allowed. At the point of arrest, adherence to all the provided laws is a vital requirement,^[20] and communication skills be employed to pass the nature of the offence to the offender.^[21] Violence should not be an option unless the party is at a flight risk or poses a threat to any of the officials and must still be at the barest minimum or proportional to the action of the offender.^[22]

• INVESTIGATION/INTERROGATION

During investigations or interrogation, the offender, by virtue of his cognitive style should not be threatened or treated negatively.^[23] The interrogation must not be under duress or in an environment that can trigger him.^[24] The rooms must be suited to meet his needs and as much as possible, his communication needs be infused during the interrogation.^[25] Deviating from all of these would mean that the rights of a neurodivergent have been prohibited. But the real question would then be if they have rights, especially considering the movement does not recognise itself as disabled.^[26]

• DURING TRIAL

This is a dicey aspect of dealing with the offender due to the complex nature and relationship of the trial of the offender. It is also because of the nature of his person and the perspective of the law.^[27] What happens during the trial is of utmost importance as it can make or mar the person of the offender. During a typical trial, the accused is arraigned and asked to plead in a language that he understands, this to the neurodivergent will be beyond the language spoken by the court but even the manner in which the message will be conveyed will be considered.^[28] For example, when dealing with an autistic person, depending on the spectrum, the court may have to opt for a relatable choice of words in a manner that will make it easier for the party. The real bone of contention will be while canvassing arguments, both in terms of building a neuro-inclusive environment and in the language of the law.^[29] For instance, considering the question of who a reasonable man is before the eyes of the law, is a neurodiverse individual reasonable before the law? Can arguments be canvassed that within the spectrum of cognitive capacity, such a one was within the standard of ‘normal’? Also, if a neurodiverse person claims to be considered normal within the society, can he still be allowed to plead the defence of cognitive impairment/diminishment and insanity which is allowed within the law?^[30] What other defences can he raise? Will the acknowledgement of neurodiversity within the law enable criminals to cut crime and misdirect the wheel of justice?

CONCLUSION

Neurodiversity is still a concept that within the Nigerian legal parlance is in its embryonic stage. Personally, when the word comes to mind, a question I ask is divergent from what? And the response will be the ‘normal’ or what the movement has tagged as neurotypical. This normal is what has shaped and defined the law and legality thus far. Hence, a deviation from this, or an indoctrination of the concept into Nigerian laws will demand that the very foundation of the law be re-dug. Although this is not impossible, such a change has to first start with societal standards and only then can an infusion be made. This, it is believed was how the feminist movement started, by society for society and then the law backed the new standard the society had set.

1. Cowper, William. Cowper: The task, with Tirocinium, and selections from the minor poems, 1784-1799. Vol. 2. Clarendon Press, 1875. ↑
2. Although not totally true, because there are universal principles underlying human cognitions it is also stated that genetics, experiences and other factors can determine the cognitive process of different persons. For further reading see; Piaget, Jean. ‘Science of education and the psychology of the child. Trans. D. Coltman.’ (1970), Tversky, Amos, and Daniel Kahneman. ‘Judgment under Uncertainty: Heuristics and Biases: Biases in judgments reveal some heuristics of thinking under uncertainty.’ science 185, no. 4157 (1974) 1124-1131. ↑
3. Gitnux, ‘Neurodiversity in Society Statistics (Fresh Research)’ Gitnux MarketData Report 2024; available at https://gitnux.org/neurodiversity-in-society-statistics/ accessed 20 May 2024 ↑
4. Judy Singer, ‘Neurodiversity: Definition and Discussion’ Reflections on Neurodiversity available ar https://neurodiversity2.blogspot.com/p/what.html Accessed 20 May 2024 ↑
5. John Harris, The Mother of Neurodiversity: How Judy Singer Changed the World (THE GUARDIAN, 2023) https://www.theguardian.com/world/2023/jul/05/the-mother-of-neurodiversity-how-judy-singer-changed-the-world Accessed on 20 May 2024. ↑
6. Jaarsma, Pier, and Stellan Welin. ‘Autism as a natural human variation: Reflections on the claims of the neurodiversity movement.’ Health care analysis 20 (2012) 20-30. ↑
7. Mayeux, Sara. ‘The idea of the criminal justice system.’ Am. J. Crim. L. 45 (2018) 55. ↑
8. Feeley, Malcolm M. ‘Two models of the criminal justice system: An organizational perspective.’ In Criminal courts, pp. 201-220. Routledge, 2019. ↑
9. Lynch, Gerard E. ‘Our administrative system of criminal justice.’ Fordham L. Rev. 83 (2014): 1673. ↑
10. Olonisakin, Tosin T., Adedeji J. Ogunleye, and Sulaiman O. Adebayo. ‘The Nigeria criminal justice system and its effectiveness in criminal behaviour control: A social-psychological analysis.’ International Journal of Accounting Research 3(6) (2018) 28-44. ↑
11. Bassiouni, M. Cherif. ‘International Recognition of Victims’ Rights.’ Human Rights Law Review 6(2) (2006): 203-279. ↑
12. Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides extensively for the rights of every citizen regardless of his health status. ↑
13. Oji, Elizabeth Ama. ‘Compensation for Victims of Crime in the Nigerian Criminal Justice System: The Need to Follow International Trends.’ Nigerian LJ 18 (2015) 122. ↑
14. Olaniyan, Kazeem Olajide. Victim Participation in Criminal Justice System: The Nigerian Criminal Justice Process. Tim Tab Publishers, 2020. ↑
15. Zappalà, Salvatore. ‘The Rights of Victims v. the Rights of the Accused.’ Journal of International Criminal Justice 8(1) (2010) 137-164. ↑
16. Agbonika, John. ‘Delay in the administration of criminal justice in Nigeria: issues from a Nigerian viewpoint.’ JL Pol’y & Globalization 26 (2014) 130. ↑
17. Iwuoha, Victor Chidubem, and Ernest Toochi Aniche. ‘Protests and blood on the streets: Repressive state, police brutality and# EndSARS protest in Nigeria.’ Security Journal 35(4) (2022) 1102-1124. ↑
18. Bankole Taiwo, ‘Lawyer, DSS Disagree Over Clients’ Arrest at Ogun Court’ (PUNCH 2024 https://punchng.com/lawyer-dss-disagree-over-clients-arrest-at-ogun-court/ [Accessed 20 May 2024] ↑
19. Sections 110-117 ACJA, 81-84 CPC, 69-72 CPA ↑
20. Oromareghake, Patrick, et al., ‘The Nigerian police and Legitimacy Crises: A focus on human rights abuses and Protection in Contemporary Nigeria.’ Journal of public administration and social welfare research 3(2) (2018) 25-37. ↑
21. Ibid. ↑
22. Harmon, Rachel A. ‘Why arrest.’ Mich. L. Rev. 115 (2016) 307. ↑
23. Clasby, Brigit et al., ‘Responding to neurodiversity in the courtroom: A brief evaluation of environmental accommodations to increase procedural fairness.’ Criminal Behaviour and Mental Health 32, no. 3 (2022): 197-211. ↑
24. Ibid above ↑
25. Edwards, Claire, et al., ‘Access to justice for people with disabilities as victims of crime in Ireland.’ (2012) 1-189. ↑
26. One principle of rule of law is that all is subject to the law. So if it is not a choice to follow the law, then it shouldn’t be a choice to be protected by it. ↑
27. Awosanya, Adejumoke. ‘Public Attitudes Towards Autism in Nigeria: The Role of Awareness, Knowledge, and Other Explanatory Factors of Autism Stigma.’ (2021). ↑
28. Ibid n23 ↑
29. Eguaras, Gillian. ‘Law and Neurodiversity: Youth with Autism and the Juvenile Justice Systems in Canada and the United States.’ Can. L. Libr. Rev. 46 (2021) 25. ↑
30. Lyons, Kiera. ‘The Neurodiversity Paradigm and Abolition of Psychiatric Incarceration.’ Colum. L. Rev. 123 (2023): 1993. ↑