Editor-in-ChiefIt is normal for any court of law to impose appropriate punishment or pass considered sentences on the accused person where he is found guilty at the conclusion of a trial. No wonder, L.A. Goodhart has argued thus: “Punishment is an expression of the community’s disapproval of crime. A community which is too ready to forgive a wrongdoer may end up condoning crime.”
The punishment for any offence varies and they come in forms of imposition of fines, imprisonment, death sentence, caning/flogging, repatriation/deportation, conditional discharge, probation orders, compensation or restitution, payment of prosecution costs, forfeiture, deposit of money for bail, and community service order.
In line with this topic, we are restricting the discussion to non-institutional punishment or sentencing for simple offences. Take note that a non-institutional method may also be referred to as a non-custodial or non-prison method. They are forms of punishment that are alternatives to prison sentences which are seen as better corrective measures. This means you do not have to go to prison, you are only required to do some work which is beneficial to the community, or simply pay a fine or an order can be made to temporarily ban the offender from going to a certain place.
A definition of simple offences will suffice here. Simple offences are minor, petty or categories of not-so-serious crimes, the maximum punishment attracting imprisonment up to six months in a prison or in a custody which may not necessarily be a prison; e.g. rehabilitation clinic or in a home of correction.
In short, all offences other than felonies or misdemeanours are simple offences. These offences include petty theft of useless articles, repeated theft of the same articles, offences committed after a record of ill health, contravention of local bye-laws, noise pollution, being disorderly, conduct likely to cause a breach of the peace, attempt to commit suicide, desertion of a pregnant woman/girl and other petty sanitation offences. It then becomes wise to award punishment against offenders convicted of simple offences, bearing in mind that punishment should deter the offender and others. Here, there should be no justification for the punishment to be severe. The argument is that cruelty punishments have a tendency to produce cruelty in the people, so it should be discouraged for simple offences. It is generally believed that a law is not expected to mass-produce convicts but rather to make the culprit pay back for his bad misdeeds, to deter others who might be tempted to try the “crime” or deter the particular criminal from being a repeat offender and to also induce the offender to turn from a criminal to an honest life. Obviously prison sentences or other stiff sentences are not effective in achieving this aim because it is assumed that if a person commits a simple offence the punishment is expected to be rational. This is desirable and the attitude is to correct, rebuild and reform. The non-institutional method of treatment becomes relevant here, because it is alternative to prison sentences. The ideal reason is to convince the offender of his guilt and to reform him.
The non-institutional methods of treatment for offenders commonly used in Nigeria are probation, parole, fines, caning/flogging, forfeiture, plea bargaining, binding over, repatriation/deportation and community service. Let us not forget that the modern trend in the treatment of offenders is termed creative in this paper because we want to say it is positive. It corrects, redeems, rehabilitate, regenerate and restore the offender to the status of a law-abiding citizen. For simple offences, it is just, humane, and more effective than the prison treatment. Let us consider the following real cases and judge whether imprisonment or non-custodial measures should be ideal for simple offences or not:
1. In April 2014, two brothers in Oyo State, Nigeria were docked for stealing cooked food consisting of wraps of fufu, soup and meat. The accused persons were not even represented by a counsel, but they pleaded guilty and appealed to the Court to be compassionate with them saying: “We were hungry…we are humiliated and we promise that we will never go back to such act again.”
2. In May 2014, an Area Court in Lafia, Nasarawa State Nigeria, discharged an offender who was charged for stealing the sum of N3,000 for want of diligent prosecution, though he initially pleaded guilty to the charge of Stealing. The question is: Should the accused person be charged for this simple offence to the Court in the first place? Is there anything the Police could have done before the matter gets to Court? Is a remedial work not an appropriate alternative?
3. In June 2014, one Mrs. Abosede Ajibode, a 51-year-old housewife, was ordered by a Lagos State Customary Court to sweep the court and the premises for one hour and her offence was simply contempt of court. To most people, this community service order is preferable to a 2-week jail term.
4. In 2014, an Ojokoro Magistrate Court in Lagos State sentenced a 28-year-old man to one month imprisonment for burglary and theft of property worth N16, 500. The conviction was without an option of fine.
5. In July 2014, a Kogi State Magistrate Court convicted 26 sanitation offenders for contravening the Environmental Sanitation Law. The Magistrate said the conviction would serve as a deterrent and all the offenders were sentenced to various terms of imprisonments and fines.
Considering the 5 cases above, it is clear that the Nigerian criminal justice system does not encourage restitution or compensation of any sort. However with the new Administration of Criminal Justice Law of Lagos State 2011, Sections 347 and 348 tend to adopt restorative justice system as a solution to some cases. Both sections provide for rules governing community service and rehabilitation and correctional centre. It is necessary to mention that the non-institutional methods of punishment are in line with the United Nations Standard Minimum Rules for Non Custodial Measures adopted by the General Assembly in 1990 and some of them are briefly mentioned as follows:
1. Probation and Parole: This punishes the offender by placing him under supervision of a competent probation officer whose duty is to help the offender to improve his anti-social behaviour.
2. Binding Over: This involves the offender to enter into a recognizance or monetary bond, not to get into trouble within a period of time given by the Court. If you get into trouble within the time stated, you must pay that sum of money or face imprisonment.
3. Caning/Flogging: This is primitive, inhuman and degrading. The possible reasons for this form of punishment is to instil fear, act as deterrent, inflict pain on the offender and subject the offender to public disgrace. This is called haddi-lashing in the North. Thankfully caning has been outlawed in Lagos State.
4. Fines: This is an imposition of a monetary sum on an offender and its aim is to convince an offender of his guilt, deter him and make restitution even if he is poor. The offender can also be ordered to pay compensation.
5. Repatriation or Deportation: This is when an offender is transferred to an environment to which he is accustomed or where he is well known. It is believed that if the offender is in his community, it may prevent him from committing crimes. This is however a topic for another day especially after the Lagos State Government has been condemned for forcefully repatriating some Igbo beggars back home.
6. Forfeiture/Confiscation/Plea Bargaining: Various laws provide Judges with the power to order offender’s property to be forfeited or confiscated. For Plea Bargain, the defendant will plead guilty to the original criminal charge in return for a more lenient sentence
7. Community Service Order: This is where an offender is ordered to render community service and the objective is to decongest the prison and to avoid mixing first time offenders with hardened criminals in prison. The offender can be ordered to get involved in sanitation duties like sweeping the court premises, washing the public toilets, or assisting in the care of children in government-approved homes and any other type of service which will have a beneficial effect on society.
In other climes like the United States of America, Judges are given a fair amount of discretion to tailor the sentence around the individual. They call it creative punishments. A Pharmacist was ordered to write a book while on a two-year probation as punishment for a white-collar crime. A Wall Street Journal reported how a Judge sentenced a woman to 8 years in jail, 5 years in probation and even to read and summarise the Old Testament Bible book of Job for driving drunk in the wrong lane when she crashed into another car. Music pop star, Chris Brown (Rihana’s ex-boyfriend) completed a court-ordered domestic violence course. Other celebrities like supermodel, Naomi Campbell; socialite, Paris Hilton; actor, Russell Brand; footballer, Eric Cantona and a host of others have been directed to serve the community for varied offences committed by them.
In the United Kingdom, there is a law in place which specifically empowers a court to order community service. In India, a rich businessman was being asked to serve the community in lieu of imprisonment for killing six people in an accident. In Rwanda, those sentenced to community service are housed in camps and not remunerated but they must all use their skills to build houses for vulnerable people and get involved in mending roads and farming.
In Nigeria, our laws already have provisions on these non-institutional methods of punishment. We are well aware of the Minor Offences (Miscellaneous Provisions) Act of 1989 which abolished wandering as an offence and also states that simple offences shall not attract detention. Lagos State is noted to have adopted some forms of the non-institutional methods in line with their Administration of Criminal Justice Law
The philosophy behind these non-institutional methods is for deterrence and reformation purposes. The reasoning is that since crime consists of offence against the public order, then no evil, no matter how small should threaten the foundation of a society. However, it has been argued that punishing offenders through imprisonment have not been able to deter intending offenders, therefore it is not powerful enough to control the upsurge of crimes as criminals are growing daily in the society.
It is recommended that Nigeria should continually learn from the criminal justice system of other developed nations, while new legislations to adopt restorative justice system are being implemented.
