News Editor
We in the leading civil rights advocacy group- HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) has watched with shock the high turnovers of arrests of youngsters for alleged 419 offences by the Economic and Financial Crimes Commission (EFCC) and their daily media parades which portrays Nigeria as a nation of youngsters who are fraudsters.
We have consistently advocated the end to the persistent media demonisation of accused persons by all supposed law enforcement agencies including the EFCC, the police, NDLEA and we note that in the case of the EFCC, the growing number of young persons getting involved in advanced fees fraudulent practices is bringing lasting global opprobrium which makes other World’s citizens to look at young Nigerians as fraudsters whereas the truth is that the youths who commit these atrocious crimes are less than 25% but due to media coverages, the World now thinks that all Nigerian youths are fraudsters.
In a bid to bring this vicious circle to a manageable level, we hereby propose that the President Muhammadu Buhari’s administration and the National Assembly should work towards amendments of the relevant sections of the EFCC Act to bring it up to speed with the Administration of Criminal Justice Law so majority of these low level fraud cases by youngsters are classified under the non-custodial measures and importantly, the National legislature should make a binding law prohibiting the constant media persecution and parades of small time offenders under the EFCC’S ACT who are mostly youngsters so the corporate image of Nigeria is not totally destroyed through self inflicted overzealous tendencies of the Economic and Financial Crimes Commission.
CURRENT PROVISIONS ON NON- CUSTODIAL SENTENCING IN NIGERIA
NON-CUSTODIAL SENTENCE: – Non-custodial sentence refers to a sentence/disposition measure that is given to an offender that does not involve imprisonment. Depending on the offence, secondary or non-custodial options may be appropriate including disqualification, confiscation and compensation (These are used more in sex, drug and trafficking offences). In other words the sentence is served outside the physical facility designated as a prison which is administered by the state or by any other agency on behalf of the state.
Other words that can be used interchangeably with the term ‘non-custodial measure’ is ‘non-custodial sanctions’, ‘non-custodial punishment’, ‘non-custodial sentence’, ‘alternatives to imprisonment’ or ‘alternatives to custodial sentence/sanction’.
CUSTODIAL SENTENCE: – Custodial Sentence involves placement in a restricted area known as a prison or other such institution. This is the most frequently used penal sanction for crime. While imprisonment is necessary in many cases especially for very serious offences, it has not solved the problem of crime prevention or the social reintegration of offenders. Moreover on many countries prison system faces major challenges because of overcrowding and outdated facilities, with the result that prisoners find themselves in deplorable conditions of detention that could have adverse effects on their physical and mental health. It could also impede their educational/vocational advancement to an ordinary life thereby affecting their chances of future adjustment and development in their communities. The impact of long term imprisonment on a person’s life and work can be enormous. This could include psychological and health problems, death, stigmatization and social exclusion.
A Sentence involves placement in a restricted area known as a prison or other such institution. This is the most frequently used penal sanction for crime. While imprisonment is necessary in many cases especially for very serious offences, it has not solved the problem of crime prevention or the social reintegration of offenders. Moreover on many countries prison system faces major challenges because of overcrowding and outdated facilities, with the result that prisoners find themselves in deplorable conditions of detention that could have adverse effects on their physical and mental health. It could also impede their educational/vocational advancement to an ordinary life thereby affecting their chances of future adjustment and development in their communities. The impact of long term imprisonment on a person’s life and work can be enormous. This could include psychological and health problems, death, stigmatization and social exclusion.
OFFENDER: – Offender means all persons subject to prosecution, trial or the execution of a sentence, at all stages of the administration of criminal justice.
SENTENCING
‘Sentencing’ is the climax in the process of trial in criminal proceedings in the courts of law. It is also the shortest but most solemn phase in the judgment process. Sentence is a sanction, an act of punishment. It is the final act of a sentencer. Behind every sentence, there is a ‘Sentencer’
For example, capital offences like armed robbery and murder, which carries death sentences, a court has no discretion, than to impose the mandatory punishment imposed by law. Like in the case of Okoro vs State (1998) 14 NWLR (PT.548).
Except specifically stipulated by law, the prescribed punishment means the maximum sentence. However, it is not mandatory that the maximum sentence stipulated by law be imposed on the offender by the court. Also see the case of Slap vs AGF (1968) NMLR 326
PRINCILPES INVOLVED IN SENTENCING
Certain principles have come to be acceptable as relevant in sentencing, and they include the following-: Revenge, Retribution, Just Desert, Deterrence, Incapacitation, rehabilitation, and Restoration.
THE PURPOSE OF SENTENCING AN OFFENDER
Generally the aim of sentencing an offender includes:
a) To keep the offender away from the society b) Deterrence- to reduce crime, prevent re offending c) Reform and Rehabilitation of offenders d) Protection of the public e) Retribution is punishment inflicted as revenge for doing wrong or committing crime (an eye for an eye), it’s an archaic measure
f) Reparation includes compensation includes reparation, repayment, atonement, etc by the offender to those affected by the crime
g) Denunciation-Reflecting society’s abhorrence of the crime.
Numerous Non-Custodial measures at Trial/Sentencing and Post Sentencing Stages were outlined and recommended. They are as follows:
Verbal sanctions such as admonition and warning.
Conditional discharge
Status penalty
Economic sanctions/Monetary penalties, such as fines and day fines
Confiscation or expropriation order
Restitution to the victim or compensation order
Suspended/deferred sentence
Probation and Judicial supervision
Community service order
United Nations (UN) Tokyo Rule 1.5.
Referral to an attendance centre
House arrest
Any other mode of non-custodial treatment, or some combination of these measures.
The above are non-custodial measures at trial and sentencing stages.
The measures for post sentencing measures includes:
Furlough and half-way house
Work and education release
Various forms of parole
Remission
Pardon.
Some academics and writers have opined that the term “Non-Custodial sentences” should not be used. They argued that the term gives the false impression that these sentences are alternatives to imprisonment, wrongly implying that custody is the main or default sentence type. They suggested that the term “Community Sanctions and Measures” be used instead.
THE ADMINISTRATION OF CRIMINAL JUSTICE ACT (ACJA) 2015
It was due to inadequacy of the legal regime to meet up all the aims discernable in sentencing that a new legal regime was put in place with the hope that it will respond to the inadequacies in our criminal justice system. This heralded the
emergence of the Administration of Criminal Justice Act which came into being on the 13th day of May 2015.
Act provides as follows;
(1)The purpose of this Act is to ensure that the system of Administration of Criminal Justice in Nigeria promotes efficient managements of Criminal Justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspects, the defenders, and the victim
(2)The courts, law enforcement agencies and other authorities or persons involved in criminal justice administration shall ensure compliance with the provisions of this Act the realization of its purposes.
Four basic objectives or goals can be discerned from the provisions Act as quoted above, namely:-
Efficient management of criminal justice institutions.
Speedy dispensation of justice.
iii. Protection of the society from crime.
Protection of the rights and interests of the suspect, the defendant and the victim.
The Act shows a shift from Punishment as a cardinal objective of the criminal justice, to Restorative Justice that pays attention to the needs of the society, the victims, vulnerable persons and the respect for human dignity.¹⁸
Very copious provisions are made for the benefits, well-being and interest of the offender.
Other States of the Federation started to replicate the provisions of the Act in their own States. Rivers State repealed its Criminal Procedure Law Cap. 38 Laws of Rivers State of Nigeria 1999, and enacted The Rivers State Administration of Criminal Justice Law No. 7 of 2015, which came into effect on 17th of September, 2016. With the same objectives, spirit and purpose as the Federal Act.
Note that Lagos State was the first to enact its own Administration of Criminal Justice Law in 2011, even before the enactment of the Act by the National Assembly. The one of Lagos State is known as Administration of Criminal Justice (Repeal and Re-Engagement) Law 2011, and it took effect on the 8th of August, 2011.
The new Act made adequate provisions for the use of non-custodial sentencing measures, which is a welcome and positive departure from the old regime.
NON-CUSTODIAL SENTENCING PROVISIONS UNDER THE ACT
The Administration of Criminal Justice Act 2015 and the Administration of Criminal Justice Laws of the States makes adequate provisions for Non-Custodial sentencing by the courts, as an alternative to passing a sentence of imprisonment. And they include the following:-
- Cost, Compensation, Damages and Restitution
- Fines
- Deportation
- Probation
- Suspension sentences
- Community service
- Detention at a Rehabilitation and Correctional Centre
- Parole.
COSTS, COMPENSATION, DAMAGES AND RESTITUTION
The court is now empowered to order a convict to pay costs, compensation, damages and to make restitution to the victim or victims of the crime. This may be the alternative to imprisonment or part of the terms of any sentence so imposed. It is the victim that these payments are made to, not to the state or government.
FINES
The court has the powers to order a convict to pay a fine, with or without a sentence of imprisonment.
Note that fines paid go to the public treasury ie the government account.
DEPORTATION
The court has the power to order the deportation or removal of a defendant from Nigeria (of a person not being a citizen), to his own country. This is for offences punishable by imprisonment without option of fine.
The court also has the powers to recommend to the Minister of Interior, for the deportation of any person (not being a citizen), for reason of security and peace, and for dangerous conduct.
PROBATION
Probation is “a court-imposed criminal sentence that subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison”.
The court has the powers to order the release of a defendant on probation.
SUSPENDED SENTENCE
A suspended sentence involves a situation where a court imposes a prison sentence on a convict, but suspends the enforcement of the imprisonment terms, upon certain conditions or no conditions at all.
The court has the power to impose suspended sentence upon a defendant.
COMMUNITY SERVICE ORDER
Community service order requires a convict to do unpaid work in the community as reparation for the offence, in the place of imprisonment.
The court has the power to sentence a convict to community service.
Note that by Section 460 (3) of the Act, community service order and suspended sentence order cannot be made in respect of an offence involving the use of arms or offensive weapon, sexual offence, or an offence which the imprisonment exceeds 3 years imprisonment.
CONFINMENT IN A REHABLITATION OR CORRECTIONAL CENTRE
The court has the power to order that a defendant/convict be sentenced to be confined in a rehabilitation or correction Centre established by the federal government, in lieu of imprisonment. Provided the offence is triable summarily, and the court is to consider the: – age of the convict, fact of the convict being a first offender, and other relevant circumstances. Where the person standing trial is a child, the court will make the order.
PAROLE
Parole is a conditional release of a convict from prison, during the pendency of the term of imprisonment, and before the completion of prison term.
The court has the power to release a convict on parole. Upon the recommendation of the Comptroller General of Prison that the convict is of good behavior, and has served substantial part of the term.²⁸
Note that under the Laws of Rivers State, it is the Comptroller of Prisons that is to make the report (not to the court, but) to the Administration of Criminal Justice Monitoring Council.
A prisoner released under this provision shall undergo a rehabilitation programme in a government facility or another appropriate facility, to enable him to be properly reintegrated to the society.
POWER TO MAKE RULES OF COURT
The Act empowers the Chief Judge of the Federal High Court or of the Federal Capital Territory to make rules in respect of the regulation and management of non-custodial punishments provided under this Act; and generally for carrying into effect the purposes of this Act.
RECOMMENDATIONS AND CONCLUSION
In the entire trial process, Sentencing is the most important step. It is at that stage that the fate of the offender is determined. It is at this stage that members of the public know what becomes of the person accused and tried for the crime/offence committed.
Very importantly, sentencing is always often used by the public to weight the integrity of the Judge and the court.
These non-custodial sentencing methods are aimed, not just for the punishment of the offenders, but to preserve harmony in the society, reform the offenders and pacify the victims. Thereby creating social-equilibrium.
Custodial sentencing should not be the first option available to the courts. Courts are advised to start with the non-custodial options and then move on to the custodial sentencing, only thereafter.
States are advised to put in place the statutory Administration of Criminal Justice Monitoring Committees /Councils, which is relevant in giving effects to the sections of the Law, especially relating to Parole. Progressively, some states including Lagos and Rivers States have the ACJMC on ground. Others are enjoined to set up theirs.
So also the federal government is enjoined to give effect to the laudable provisions of the Nigerian Correctional Service Act 2015, especially those requiring the formation or creation of certain bodies to give effect to the non-custodial measures in the Act.
Since the passage of the Act and the Laws by the various states, it can still be seen that our Custodial Centers are still over-crowded. And the number of awaiting trial inmates is still in the majority. This is not a good development. This may seem to be the narrative in the short term, but in the long term, the situation might change for the better.
The relevant stakeholders should ensure that they all play their parts towards ensuring that the purpose of the Act and Laws are realized. The role of the court in the whole process, cannot be over emphasized. They indeed have a lot to do in ensuring that this new regime works very effectively, for the betterment of all concerned.
Be that as it may, the above measures may by and large, be ineffective in the long run, especially where the offenders breach the terms of the non-custodial sanctions imposed on them. Thus, there would be the need to build new or additional Correctional Centres, not just the cosmic expansion of some existing ones.
Prisons as we know is contained in the Exclusive Legislative List No. 48 of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999 as Amended. This means only the federal Government can legislate on matters concerning the Prisons. There will be the need to move it (Prison) to the Concurrent Legislative List, to enable the States be able to make imputes, which may come with the States assisting to build new prisons, to accommodate the large number of inmates.
Advisedly, since the name of the place of detention has been changed from ‘prison’ to ‘custodial centres’, all other words or terms which seem to still use the negative or such pejorative connotations, should be re-written to positives terms. And the name of the person in such centres not be called ‘prisoners’ anymore.
Custodial sentence as it were, targets those inmates already in the custodial centres. And who have endured the hardship while awaiting trial, which in most cases take years to get to judgment state. These measures on their own may not help much in reducing the number of inmates inside the custodial centres.
Rather, very specific efforts should be made to deal with this issue of congestion frontally. What is contained in Sections 293-299 and 276 of the ACJA, Sections 264-267 Lagos State ACJL, and Sections 300-306 and 383 of the Rivers State ACJL are not adequate for this purposes.
The legislature should rewrite the provisions to shorten detention periods or remand periods; period for the release of legal advice in matters, and there should be a specific and clear provisions on what the courts is to do when the legal advice.
*COMRADE EMMANUEL ONWUBIKO:
NATIONAL COORDINATOR:
HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA).
November 15th 2021
