JThe Webster’s New World Law Dictionary defines a non custodial sentence as ‘a criminal sentence served elsewhere than in a prison (for example, on probation)’.
In the simplest term, a non custodial sentence refers to the sentence imposed on a person who has been found guilty of a crime by a competent Court of law which does not involve a term of imprisonment in the case of an adult, a remand order in the case of a minor or young person or a detention at the liberty of the Governor in the case of a person of unsound mind.
A wide range of non-custodial sentences exist in the criminal justice administration system. They include but are not limited to the following; Fines, Binding Over, Community Service, Probation, Caning, Compensation, Reparation Order, Attendance Centre Order in the case of minors.
In Nigeria, our criminal justice system traditionally recognises the death penalty (for capital offences), imprisonment, fines, binding over, caning, amputation and stoning to death in the case of the Sharia laws being operated by the respective Northern States as punishment for offences. However, imprisonment with or without fines is the most widely imposed punishment by our Courts of Law for offences that are not capital in nature.
This is especially so because the Criminal and Penal Codes establishing and imposing punishments for the various offences stipulate varying terms of imprisonment with or without fines as punishment.
Hence, we have found ourselves in a situation whereby even so-called minor offences have been punished with terms of imprisonment, however short, further congesting our already overcrowded prisons all over the country with the attendant dehumanizing living conditions.
In a recent interview, the Comptroller-General of The Nigeria Prison Service, Mr Ja’afarau Ahmed stated that as at March this year, there were 68,250 inmates held in prison facilities all over the country. Out of this number, 46,351 are awaiting trial, while the remaining 21, 903 are convicts.
A situation where supposed minor offences for instance, a cell phone theft, or first time offenders are sent to the same prison facilities to be housed together with hardened and unrepentant criminals defeats the whole essence of establishing the Prisons Service ab initio, qua its mission statement; ‘Our intention is to establish a credible prisons service which is through excellent penal practice, seek lasting change in offenders’ attitudes, values and behaviour and ensure successful reintegration into the society’
With the exception of the recently passed Administration of Criminal Justice Act, 2015 (ACJA) and The Lagos State Criminal Law, 2011, most other legislations on crimes and criminal justice administration are archaic, and do not have incorporated in them this modern trend of non/custodial sentences.
The ACJA, 2015 at Section 319 makes provision for Victim Compensation, Restitution and Damages which may be imposed on a convict alongside any other fine or term of imprisonment.
The Lagos State Criminal Law 2011 is more pungent in its Section 15 (2). The said section provides that:
‘any other disposition measures which may be ordered under this law are compensation, restitution, community service orders, probation, curfews orders, binding over orders, rehabilitation and correctional orders, victim-offender mediation and other restorative justice measures’
Flowing from the above, Courts, especially Magistrate Courts in Lagos State are empowered to sentence convicts to hours of community service either by cleaning public toilets or clearing the Court premises or in any manner according to the discretion of the Judge. It goes without saying that this does not in any way take away the power of the Court to impose terms of imprisonment if it so wishes.
The resultant effect is that instead of sending every offender of law to prison, having being found guilty of an offence, or impose fines in lieu of imprisonment (where usually in the case of indigent convicts, they cannot pay and end up in prison), there are other legally recognizable punishments that can be imposed, due regard having been had to the age of the offender, the severity of the offence, the demeanour of the offender during trial, whether the victim can be compensated, etc.
These forms of non-custodial sentences function together to improve the effectiveness of our criminal justice administration. The government is also saved the revenue of feeding and clothing inmates had they been sent to serve prison terms.
I hereby implore other states of the federation to emulate Lagos State by amending their various criminal laws to incorporate these forms of non-custodial sentences. The effect overwhelmingly is that we gift ourselves a hugely effective criminal justice machinery that takes into consideration the peculiarity of the offence and/or the offender, rather than a blanket craze to sentence to prison. A craze which ultimately does more harm than good to us as a people particularly, and the system in general.
Akinsehinwa, a legal practitioner, lives in Abuja.