Non-Custodial Sentence as a Means of Prison Decongestion in Nigeria

1.0 Introduction

Statistics from the Nigerian Correctional Service as at 13th January 2020 shows that, out of the total inmate population of 72,627, the total number of convicted prisoners is 21,890 (30%) while those awaiting trial is 50,737 (70%). The large number of those awaiting trial has overstretched the built-in/carrying capacity of most Nigerian prisons resulting in overcrowding of such prisons. This has occasioned a lot of health implications, increased tear and wear of prison facilities, and administrative challenges among others. Based on the foregoing, there is a great need for proactive measures to drastically decongest Nigerian prisons.

 

Over the years, there have been efforts towards prison decongestion across board by private entities and public institutions. Examples of efforts by such private entities includes the Firma Advisory’s Access to Justice and Pro-Bono Legal Aid Initiative; Network of Pro-Bono Lawyers; I Believe in Prison Reform and individual law firms and non-governmental organisations to mention a few. Also, public institutions like the Legal Aid Council of Nigeria, Prison Decongestion Unit in the Federal Ministry of Justice, Presidential Committee on Prison Reforms chaired by the Chief Judge of the FCT High Court and the Presidential Advisory Committee on Prerogative of Mercy chaired by the Hon. Attorney General of the Federation/Minister of Justice.

 

The above efforts from the private and public sectors have yielded some positive results in decongesting Nigerian prisons however, recent statistics show that substantially, Nigerian prisons still remain overcrowded. This reason is because on a daily basis, suspects, accused persons and defendants get remanded in prison custody for minor offences thereby adding to the large number of awaiting trial (non-convicted) inmates. Therefore, this has led to calls for extensive adoption of non-custodial sentences and orders to drastically reduce the huge number of awaiting inmates in Nigerian prisons. In this regard, this short paper appraises prospect of non-custodial sentencing in drastically decongesting Nigerian prisons.

 

 

2.0 Non-Custodial Sentence and its Legal Framework

Generally, a sentence is the judgment that a court formally pronounces after finding a criminal defendant guilty. It is the judicial determination of the penalty for a crime hence the punishment imposed on a criminal wrongdoer. It is usually custodial which requires that the convict be locked up in prison thereby being legally deprived of liberty. On the other hand, non-custodial sentence is a criminal sentence (such as probation) not requiring prison sentence. Thus, 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. Also, non-custodial sentence can be in the form of suspended sentence.

 

Suspended sentence is a sentence postponed so that the convicted criminal is not required to serve time unless he or she commits another crime or violates some other court-imposed condition. A suspended sentence, in effect, is a form of probation. It is also known as withheld sentence.

 

In order for non-custodial sentencing to be effective, the legal and regulatory framework will be necessary. Such legal framework is seen in the Nigerian Correctional Service Act 2019 which established the Nigerian Non-Custodial Service under part II providing for its functions, power to make regulations and guidelines and allowing for praole, probation, community service, restorative justice measures and any other non-custodial measure assigned to the Correctional Service by a court of competent jurisdiction (section 37). Under the Act, Non-Custodial Service is defined as an aspect of the Nigerian Correctional Service that serves as an alternative to going to a custodial centre (section 46).

 

The need and prospect for non-custodial sentencing was reiterated by former Chief Judge of Lagos State, Hon. Justice Opeyemi Oke (rtd.) who said that;

"Today in Nigeria, we have seen countless cases where defendants are arrested for minor offences such as burglary and wandering; they are locked up in our prisons for the flimsiest reasons to join the teeming population awaiting trial inmates. They are in our prisons with hardened criminals and by the time they come out they have been initiated into a life of crime and are ready to spread terror, death, and destruction in their post-prison escapades."

In addition, the Judge said petty offenders will be diverted to the Practice Directions centres where non-custodial sentences, including fines, restitution orders, and community service orders would be used as long as they are willing to take responsibility for their actions. Thus, petty offenders will no longer get prison sentences effective from 3rd June, 2019.

In essence, the foregoing is highly commended as it will greatly reduce the population of awaiting trial inmates who were arrested for allegedly committing minor offences. Therefore such measures should be adopted in all other states of the Federation including the FCT.

3.0 Forms of Non-Custodial Sentencing

There are several non-custodial alternatives among which are:

i.                    Community Correction Order (CCO) which prescribes standard conditions such as stating that an offender must not commit any offence and additional conditions including supervision, community service work, curfews, alcohol and drug abstinence, non-association, place restriction, programmes and treatment;

ii.                  Conditional Release Order (CRO) which provides the court with an option to divert low-risk and less serious offenders away from the criminal justice system. It can be imposed with or without conviction and the additional conditions under CCO also apply to this order.

iii.               Driving Disqualification under which a court can impose a driving disqualification period preventing a person from driving during a given period of time.

iv.                Fines or Monetary Orders which requires that certain sums of money be paid. Monetary orders include court costs, witness expenses, compensation (section 78 of the Penal Code and the Violence Against Person (Prohibition) Act 2015 [VAPP Act], sections 1(3) and 2(5) [on financial compensation]) and professional costs. It is worth noting that under our criminal laws, various options of fines have been enshrined either solely or jointly with prison sentences. Thus, consequent to such provisions for example section 17 of the Criminal Code, section 72 of the Penal Code and the VAPP Act, the courts have imposed orders for payment of fines in addition to imprisonment sentence upon conviction.

v.                   Apprehended Violence Orders (AVO) which prohibits certain behavior(s) for a period of time. Such orders include not to assault, harass or intimidates a protected person, not to contact a protected person or not to attend premises where a protected lives or works. Such orders are likened to protection orders provided for under the Violence Against Person (Prohibition) Act 2015 which is accompanied by a warrant of arrest (sections 28-36 and 46). The consequence of breaching an AVO includes arrest and charging to court with an offence.

 

It is worth noting that some of the above alternatives have been implemented in other jurisdictions and they have been effective. Therefore, adopting and adapting same in our criminal justice system will bring with it enormous prospects. In this vein, the Nigerian Correctional Service Act 2019 has established the non-custodial service which has been defined as an alternative to a custodial centre; empowered same and created non-custodial centres which are designated centres in the community for the administration of non-custodial measures (community service, probation, parole etc.).

 

4.0 Conclusion

In essence, non-custodial sentence as an effective means of prison decongestion in Nigeria will play a complementary role to the prison decongestion efforts of Access to Justice Initiatives, the Presidential Committee on Prison Reforms, Prison Decongestion Unit, Legal Aid Council, and the Presidential Advisory Committee on Prerogative of Mercy. The foregoing will positively enhance administration of criminal justice in Nigeria.

 

However, in order for noncustodial sentencing to operate effectively in prison decongestion, there must be prioritized in addition to proactive implementation of the Nigerian Correctional Service Act, 2019. There should be:

a) efficient record keeping system of the data of convicts preferably digital system;

b) effective, adequate and skilled probation officers and their equipping and funding;

c) effective location of convicts' places of abode or domicile;

d) prompt and efficient reporting system.

 

 

 

 

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