UNIVERSITY OF LAGOS, AKOKA

SCHOOL OF POSTGRADUATE STUDIES

FACULTY OF LAW

LLM SEMINAR PAPER

SENTENCING AND TREATMENT OF OFFENDERS

PUL 806

SEMINAR TOPIC:

CRIME AND PUNISHMENT

LECTURER: PROF. AKIN IBIDAPO OBE

PRESENTED BY:

YEKINI ABUBAKRI OLAKULEHIN

MATRIC NO: 119061086

MARCH 2012

1

TABLE OF CONTENT

1.0 INTRODUCTION

1.1 THE DEFINITION OF CRIME

1.2 HISTORICAL PERSPECTIVE ON CRIME AND CRIMINAL LAW

2.0 APPLICABLE LAWS

2.1 THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

2.2 STATUTES

3.0 PURPOSE, ELEMENT AND CLASSIFICATION OF CRIME

3.1 PURPOSE OF CRIMINAL LAW

3.2 ELEMENTS OF CRIME

3.3 CLASSIFICATION OF CRIMES

3.4 CRIME IN THE INTERNATIONAL SPHERE

4.0 THEORIES OF PUNISHMENT

4.1.1 DETERRENCE:

4.1.2 RETRIBUTION

4.1.3 REHABILITATION

4.1.4 INCAPACITATION

4.1.5 RESTORATION

4.2.1 PUNISHMENT UNDER NIGERIAN LAW

4.2.2 DEATH PENALTY:

4.2.2 IMPRISONMENT

4.2.3 FINES

4.2.4 CORPORAL PUNISHMENT

4.2.5 COMPENSATION

5.0 REFRENCES

2

1.0 INTRODUCTION

Crime and punishment are two concepts that are vital to the harmony and peaceful co-

existence of a state. The goal of every society is that every inhabitant should pursue his

interest and aspirations without fear or hindrance from another co-inhabitant. In securing this,

every community of man has always put in place rules and norms that regulate the interaction

of the inhabitants.

Certain conducts in the society that threatens the societal goals are collectively frowned at.

Such actions are usually collectively known by the people of every society. In other to

discourage people from engaging in such acts, certain specified punishments are attached to

such conducts.

In this paper, I shall consider the concept of crime and punishment from varieties of

background. An attempt shall be made to examine the historical perspective of crimes,

various categories and elements of crimes and of course theoretical basis of punishment and

punishment as enshrined under Nigerian laws shall be highlighted.

1.1 THE DEFINITION OF CRIME

The word crime has its origin in the latin word crimen meaning “accusation”, “indictment”,

“charge” or “fault”1. What is a crime is a very difficult question to proffer an answer. The

word ‘crime’ like many other concepts has defied an acceptable and all encompassing

definition. The reason is not farfetched. The word crime has variety of meanings depending

from the angle it is being approached. It is a multi-disciplinary concept2. What a crime is to a

sociologist may not necessary accord with a lawyer’s view of crime. Yet, theologians may

not agree with both of them. Hence, it would be apt to consider what crime means to different

classes of people.

1 F., Okeshola : Patterns and Trends of Crime in Nigeria, Lagos, National Open university of Nigeria, 20082For instance in the field of criminology, different schools abound on the theory on crime. The classical school is led by Cesare Beccaria and Jeremy Bentham. They developed the Hedonic principle- the principle of Pleasure and pain which should form the background for crime and punishment. Cesare Lombroso led the biological theory of crime. The school is of the opinion that crime is a result of the physical and genetical features which they claim predispose individuals to committing crime. Hence, crime is a result of individual biological disorder and this should be consider is punishment as well. Therefore, it is treatment that offenders need and not punishment (as in pain). McCord and Joan McCord who are the leading proponents of the psychological school looked observed that crimes are resultant effect of personality traits of individuals. A detail account of these theories is offered by: K. U. Omoyibo: Contemporary Issues in Criminology and Security Studies, Lagos, National Open University of Nigeria, 2010

3

Acts that constitute a crime in one society may not be a crime in another society.3 Even in the

same society, an act that constitutes a crime at particular time may be dropped at another

point in time.4 What is a crime to a person might not constitute a crime if committed by

another person.5 The instances are endless.

According to the sociologists, crime is seen as a behaviour that violates the norms of the

society. It is anti-social behaviour6. A norm is any standard or rule regarding what human

beings should or should not think, say or do, under given circumstances. Crime is antisocial

behaviour that is injurious to those social interests which rules of behaviour (including

legal codes) are designed to support.7 Hence, the sociologists are more concerned with the

totality of conducts that offends the collective conscience of the society.

This approach to the study of crime is very useful as it takes into account all anti-social

behaviours as crime. In other words, it is a holistic approach towards the study of crime and

criminalization of conducts. Perhaps, the society would better achieve its aim of a balanced

and just society where the totality of anti-social behaviours is taken care of8.

The understanding of crime to lawyers and jurists is that crime is a violation of any conduct

that has been criminalise by statute and which could earn the culprit a punishment. According

to Tappan ‘crime is an intentional act in violation of the criminal law (Statutory and case

law), committed without defence or excuse, and penalized by the state as a felony or

misdemeanour’9. Glanville Williams using crime interchangeably with offence defined it as

“a legal wrong that can be followed by criminal proceedings which may result in

punishment’10 It is in this sense that lawyers approach the concept of crime.11

3 For instance, in the Northern part of the country, Adultery is an offence while in the southern part it does not constitutes an offence4 For instance in Lagos State, bigamy used to be a law before the passage of the Criminal Code Law of Lagos State 2011 which now omits bigamy as an offence.5 An adult may be guilty of muder but a child cannot be guilty of same.6 F. Okeshola: Patterns and Trends of Crime in Nigeria, Lagos, National open University of Nigeria, 20087 E. H Johnson, Crime, Correction and Society, Homewood, The Dorsey Press, 1968, p.138 The pitfall in this sociological definition of crime is that it is not in all societies that one can easily agree on what the prevalent norm is. This is apparent in heterogeneous societies. For instance, in the Northern part of the country where we have indigenous Hasua/Fulani and Christians, one there is no doubt that it will be an herculean task to try bring out the norm in the society. What is acceptable to the Hasua/Fulani may not be shared by the Christian co-inhabitants9 P. Tappan: ‘Who is the Criminal?’ in American Sociological Review (1964:32) p. 9610 G williiams: Textbook of Criminal Law, 2nd ed., London, Stephens and sons, 1983, p. 2711 One demerit of the legal approach to crime is the over criminalisation of conducts. There are some acts that may not really cause any harm but would become a crime once it finds its way into the criminal statute

4

To the theologians, a crime which is also regarded as sin is any act against the commandment

of God. It could be seen in some respect as a hybrid of both the sociologist and legal

conception of crime. Some anti-social behaviour may well constitute sin or crime in the

theological sense like murder, rape, and stealing to mention but few. Again, some sins are so

called because the holy books have made them to be so thereby sharing some boundaries with

the legal conception of crime.

It must be noted however, that when we say an act or omission is a crime, at least in our

country Nigeria, it is the legal sense of a crime that we are referring to. In this sense,

Okonkwo and Naish have defined crime as those breaches of the law resulting in special

accusatorial procedure controlled by the state and liable to sanction over and above

compensation and costs12. Statutorily, a crime is an act or omission which renders the person

doing the act or making the omission liable to punishment under the Code or under any Act

or law.13 Therefore, it means that a crime is only what the state through the legislatures has

made to be so and such must be well spelt out under the law14.

1.2 HISTORICAL PERSPECTIVE ON CRIME AND CRIMINAL LAW

Crime predates man and any given society. Infact, it is on record that the first crime was

committed by satan (devil)15. Although, other accounts had it that the first crime was

committed by Adam and Eve, then the case of abel and cain follows16.

Historically, crime has always been regarded as a civil wrong. Individuals that were

wrong can only seek justice from the offender himself or his family. Justice during

this early period is only retributive. This may not be unconnected with the various

wars that usually ensue from an act of injustice (crime) committed by a member of a

clan against another.

12 C.O Okonkwo and M.A Naish: Criminal Law in Nigeria, London, Sweet & Maxwell, 1980, p.1913 See section 2 of Criminal Code Act, cap. C38 Laws of the Federation of Nigeria 2004. 14 The Constitution of the Federal Republic of Nigeria 1999 has provided for the definition of crime in its section 36 (12); See S. 3(1) of the Penal Code Law, of Northern Region; Aoko v. Fagbemi(1961) 1 All NLR 400 and Udokwu v. Onugha (1963) 7 ENLR P. 1, the court observed that even though the act of invoking juju might constitute an offence according to the native law and custom of the people, same in not recognised as a crime in the eyes of the law since there is no such an offence written in any laws of the land15 This position is prevalent among the adherents of the Islamic faith. It is believed that when Allah (God) created Adam and He asked all the Angels to prostrate to him, all the Angels prostrated except Satan and there and then He was cursed. See for instance Quran 2 verse 2416 S. Harent: ‘Original Sin’ in The Catholic Encyclopedia, New York, Robert Appleton Company,1911

5

The concept of crime and criminal law has been traced to the emergence of the

modern state or monarchy17. Even then crimes were confined to acts committed

against the king. Private revenge remained as the only option available to crime

committed against individuals. Eventually, the king representing the state realized that

the peace of the community was at stake and decreed that the act of wrongdoing to an

individual should be reported to the king. Anyone who injured one of the king’s

subjects was considered to have injured the king18. Consequently, the state by way of

the king’s authority assumed the administration of justice by defining crimes,

codifying laws, establishing fines, and implementing the court system19.

According to Edewor, ‘the first civilizations had codes of law, containing both civil and penal

rules mixed together, though these codes were not always recorded. The first known written

codes were produced by the Sumerians, and it is known that Urukagina had an early code that

does not survive. A later king, Ur-Nammu left the earliest code that has been discovered,

creating a formal system of prescribed penalties for specific cases in 57 articles. It was called

the Code of Ur-Nammu’20. It is also on record that the code of Hamurabi (1772 BC) which is

the longest surviving text from the old Babylonian period also contains some criminal

sanctions21.

In Nigeria, before the advent of the colonial masters, there was in existence, some systems of

customary criminal law which regulated the standard of behaviour of the People22. Being

customary law, the conducts that constitute crime though unwritten were generally

recognised as such among the members of the each community23. In the southern part of the

country, the Obas are the custodians of the laws while in the North, the Emirs have courts in

their palaces where cases of breach of customary norms are dealt with.24

17 K. U. Omoyibo: Contemporary Issues in Criminology and Security Studies, Lagos, National Open University of Nigeria, 2010, p.1618 S.T. Reids: Crime and Criminology, 7th ed. Orlando, Harcourt Brace College Publishers, 1994, p.419 Ibid.20 D.O Edewor: Theory Of Crime And Crime Control, National Open University of Nigeria, 201021 E.D Edelstein and R.J Wicks: An Introduction to criminal Justice, New York, McGraw-Hill Inc., 1977, p.4122 A. Ibidapo-Obe: A Synthesis of African Law, Lagos, Concept publications Limited, 2005, p.3423 ibid24 For a detail exposition of administration of justice under customary law and related issues, see: A. Ibidapo-Obe: A Synthesis of African Law, supra, pp 97-125; A.G Karibi-Whyte: History and Sources of Nigerian criminal law, Ibadan, Spectrum law publishing, 1993

6

The country was invaded sometime around 1861 and the conquistadors imported the imperial

laws into the country. In 1904, Lord Lugard, the governor of the Northern protectorate

introduced by proclamation a Criminal Code which incidentally was made applicable to the

whole of Nigeria in 1916 after the famous amalgamation in 1914. Hence, we have a duality

or multiplicity of criminal laws in the country. The customary and Shariah system were

operating alongside the Lugard Criminal code25. In 1958, it was agreed at the pre-

independence conference that customary criminal law be abrogated and that a penal code

which would reflect the traditional (Islamic) crime be introduced in the North26. At last,

customary criminal law was eventually abrogated by the Independence Constitution27.

2.0 APPLICABLE LAWS

In Nigeria, crimes and punishments are governed by the following legislations:

2.1 The 1999 Constitution of the Federal Republic of Nigeria

The constitution is the grund norm in the country. It is the most important law as it is

supreme over all persons and authorities in the country. All other laws derive their validity

from the constitution. The constitution divided powers between the organs of government28.

Crime and Punishment is a matter that is neither on the exclusive nor legislative lists. Hence,

it is within the legislative competence of both the Federal and State governments to legislate

on it within their territorial limits29. The constitution provides some frameworks for the arrest,

arraignment and prosecution of anyone accused of crime. Section 35 deals with the personal

liberty of an accused person. An accused person must be taken before a court of law upon an

arrest for a reasonable suspicion of commission of a crime within 24 or 48 hours30 or be

granted bail. Section 36 provides for constitutional safeguards in respect of an accused person

25 A. Ibidapo-Obe, supra, p.4326 Ibid, p.4427 See section 22 (10) of the repealed 1960 Constitution. That section of the constitution reads “No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law”. The provision has been retained in all the subsequent constitutions including the 1999 Constitution (as amended)28 See the first schedule to the constitution. We have the Exclusive list (where only the Federal Government has the competence to legislate on) and the Concurrent list (both Federal and the Constituent states have power to legislate on). Any matter outside these two lists is a residual matter and both the Federal and State governments can legislate on it.29 AG Lagos v AG Federation and Ors [2003] 12 NWLR (PT. 833) 1. One case that further discuss the powers of the states and the federation over in respect of enactment of criminal laws is AG Ondo v AG Federation (2002) 9 NWLR (Pt.772) 222 wherein the apex court was asked to pronounce on the validity of the Federal Government’s enactment of the Corrupt Practices and Other Related Offences Act, 2000. The validity of the Act was affirmed by the court after examining a number of provisions of the constitution particularly s.15(5)(a)30 Depending on whether there is a court of law within a radius of 40 kilometers from the place of arrest. It should be noted that this provision is not applicable to someone accused of a capital offence. See s.35 (7) of the Constitution

7

standing trial. These include: presumption of innocence, fair trial, an accused cannot be

charged except the offence is written in a law, an accused cannot be convicted for an offence

that he had previously been pardoned31.

2.2 STATUTES

Crime is a residual matter for the states and of course Federal Government (for the FCT) can

legislate on. In Nigeria, we have the Criminal Code which is applicable generally in the

southern part of the country. In the northern part of the country, the Penal Code has been in

existence right from independence as the Northerners had rejected the ‘English’ style of

criminal law. The penal Code was styled to follow the Code of Sudan which itself was

borrowed from the Indian Penal Code32. In 2000, some northern states33 adopted the Shariah

Penal Code34. Some offences covered by this law are faith-based. They contain the hudud,

Qisas and tazir offences35 as well as other general offences. Some other offences are covered

in different statutes apart from the basic criminal/penal code. These statutes include: the

Economic and Financial Crimes Commission (Establishment) Act36, The National Drug Law

Enforcement Agency Act37 and Customs and Excise Management Act38.

Other important statutes that have bearing with crime and punishment are the Police Act39

and Prison Act40. The Police Act empowers the police to investigate and arrest persons that

are reasonably suspected to have committed an offence and also the power to institute a

criminal proceeding41. The Criminal Procedure Act (South) and the Criminal Procedure Code

(North) govern the procedural aspect of criminal prosecution and sentencing.

3.0 PURPOSE, ELEMENT AND CLASSIFICATION OF CRIME

3.1 PURPOSE OF CRIMINAL LAW

31 See generally s36 (4) - (12). See also ss.175 and 212 on power of the President and Governor to grant pardon, ss. 174 and 211 on the power of the Attorney General of the Federation and those of the states to institute, undertake and discontinue all criminal proceedings, part I of Fifth Schedule of the Constitution on Code of Conduct Tribunal and offences therein.32 See C.O Okonkwo and M.A Naish, supra, p.933 The states are: Zamfara, Sokoto, Jigawa, Kaduna, Yobe, Niger, Kebbi, Kano, Bauch, Borno, and Gombe34 See for instance, Shariah penal Code of Zamfara State, law no. 200035 Hudud are offences that carry fixed punishment; Qisas are offences that carry Retaliatory punishment and ta'azir are penal/exemplary punishments36 Act No.1 200437 CAP N30, LFN 200438 CAP C45, LFN 200439 CAP P19, LFN 200440 CAP P29, LFN 200441 See ss. 4, 23 and 24 of the Police Act, supra. See also FRN v Osahon & Ors [2006] 4 MJSC 1

8

It is the duty of every society to protect its internal harmony. Without this, there will be

nothing to be referred to as a society. The state has the responsibility to allow and encourage

its citizens to pursue and maximise their interests in every endeavour while little or no harm

is done to others. In other to achieve this, certain conducts which are inherently prejudicial to

the peaceful co-existence in the society are criminalised and sanctions are imposed to deter

people from engaging in it. So, the state need put in place laws and regulations that seek to

balance between these interests and harm when the two are in conflict

There are some conducts that are inherently bad (mala in se). They are universally recognised

as such and are outlawed everywhere. Examples include murder, theft and rape.42 Other

conducts though not inherently bad but may be counterproductive and eventually threatens

the peaceful co-existence in the state. So, the states through its machineries usually legislate

against such conducts. These types of conducts are referred to as mala prohibita. Example

includes gambling43.

For the first time in Nigeria, a criminal statute44 has clearly spelt out the objects of criminal

law. Some of the objectives identified in the law are45:

a. Promotion of an orderly society

b. Forstering collective obligation and duty towards the preservation and protection of

life and property including public property

c. Forbidding and dealing with conduct that unjustifiably and inexcusably inflicts or

threatens substantial harm to individual or public interest

d. Safeguarding conduct that is without fault from condemnation as criminal

e. Subjecting to public control, persons whose conduct indicate that they are disposed to

commit offences

Apart from this, the Shariah Penal Codes in the Northern part of the country are based on five

basic objectives46. The objectives of criminalising certain conducts in Shariah are also aimed

at the attainment of good, welfare, advantage, benefits and warding off evil, injury, loss for

42 T.A Oduwole and N. Adegoke : Traditional and Informal Mechanisms Of Crime Control, National Open University of Nigeria, (n.d)43 ibid44 Criminal Law of Lagos State, Law no. 11, 201145 Ibid., S.246It is generally agreed among Islamic jurists that the Shariah has been handed down basically to protect the five basic objectives. These objectives are called ‘Maqāsid ash-Sharī’ah’

9

the subjects. Hence, any act that tends to jeopardise the following five things constitute

serious offence. They are Faith, Life, Honour, Property, and Intellect47.

3.2 ELEMENTS OF CRIME

It suffices to say that crime and offence have been customarily agreed to mean the same

thing. In the accusatorial criminal system applicable in Nigeria, the prosecution must prove

all the elements of an offence for which an accused person is standing trial 48. Every offence

has two basic elements, that is to say, the physical element and the mental element, except

strict liability offences which are complete upon the manifestation of the physical element

only49. A person cannot usually be found guilty of a crime unless these two elements are

present: an actus reus(physical element) which is the guilty act; and mens rea(mental

element)- a guilty mind.

Actus reus consists of all the elements of the offence other than the state of mind of the

accused person. It is also possible for an act to be part of the actus reus of different offence,

depending on the consequence of such an act50. For instance stabbing someone may form an

actus reus of murder if the victim dies or of causing grievous bodily harm if the victim

survives51.

An actus reus could come in different form. For action crime, the mere doing of that act

constitute a crime. The effect of the act does not matter52. Some actus reus are result oriented.

47 Mamman Lawan et. al have summed up the basic these basic objectives as follows: ‘Like other criminal justice systems, the Islamic criminal justice system has as an overall objective the building of an orderly society. But because Islamic law cannot be divorced from the religion of Islam, the system has a unique approach towards achieving this objective. Thus in addition to protecting lives and property through criminalising murder and theft, the Islamic criminal justice system specifically seeks to protect for Muslims their faith by prohibiting apostasy. This is because the religion is believed to be the umbrella under which regulations shall operate in the worldly life and it is the necessary way for a successful life in the hereafter. Similarly, the system seeks to protect persons’ family/honour by criminalising sexual intercourse outside marriage; women’s chastity by criminalising false charge of adultery against women; and persons’ sensory faculty by criminalising drinking intoxicants’. See: M. Lawan, I.N. Sada, and S.S Ali: An Introduction to Islamic Criminal Justice: A Teaching and Learning Manual, UK Centre for Legal Education, 2008, p.2

48 Essential element of an offence has been defined to mean an element without which the offence cannot be sustained in law. See Onogoruwa v. State (1993) 7 NWLR (Pt. 303) 49 at p. 85 Paras C-D49E. Essien: Introduction to Nigerian Criminal Law, A.Ibidapo-Obe and A. Bello eds., Lagos, National open University of Nigeria, 2008, pp. 15-1650 C. Elliot and F Quinn, Criminal Law, 5th ed., London, Pearson Education Limited, 2004, p.851 See Williams V. The State (1977) NSCC 37; Bature V The State (1991) 5 NWLR (PT. 194) 69752 See E.Essien, supra, p.15

10

This means that the actions alone do not constitute the offence but rather the resultant effect53.

In some cases, failure to act may constitute an actus reus54.

The second component of an offence is the mens rea. It refers to the state of mind of the

person committing a crime. To constitute a mens rea, the conduct of the accused person must

have been intentional, reckless or negligent depending on what the statute requires55.

3.3 CLASSIFICATION OF CRIMES

There are various categories of offences according to the statutes. In the southern part of the

country where the Criminal Codes are applicable, offences have been classified into 3. We

have felonies, misdemeanours and simple offences56. The classification has been based on the

severity of the punishment applicable to an offence.

A felony is any offence which is declared by law to be a felony, or is punishable without

proof of previous conviction, with death or with imprisonment for three years or more57.

Examples include Murder, Treason, Armed Robbery, Rape, Stealing, Manslaughter, forgery,

being a member of an unlawful society etc.

A misdemeanor is any offence which is declared by law to be a misdemeanour, or is

punishable by imprisonment for not less than six months, but less than three years58.

Examples include obstructing officer of courts of justice, keeping a brothel, fouling water etc.

All offences other than felonies and misdemeanours are simple offences.

In the Northern part of the country, there is no classification in the penal code. However, the

offences in the Shariah Penal Codes are broadly classified into Hudud, Qisas and Ta’zir59.

Hudud are offences that have penalties prescribed in fixed term in the Quran or the Sunnah60.

They are the most serious offences. Examples include murder (death penalty); adultery (death

53 For instance Murder.- the accused act must caused death54 R v.Gibbins and Proctor (1918) 13 Cr.App. 134- a man and a woman were living together with the man’s daughter. They failed to give the child food and she subsequently died. 55 E. Essien, supra, pp. 16-20. It should be added that some offences require guilty knowledge, while some are strict liability. 56 S. 3, Criminal Code Act, supra as well as Criminal Code laws of various states. It is contained in s.5(1) of the Criminal Code law of Lagos State, supra which is now slightly different from others.57 Ibid.58 Ibid.59 Although, there are some penal code offences incorporated into the Shariah penal code which are not classified under Hudud Qisas or Tazir60 M. S. El-Awa: Punishment in Islamic Law, Indianapolis, American Trust Publications, 1998, p.1. the Sunnah is the sayings and practices of the prophet Muhammad (Peace and Blessings Upon Him) and it is regarded as a primary source of Islamic law after the Holy Quran

11

penalty); fornication (100 lashes); theft (amputation); consumption of alcohol (80 lashes) and

defamation (80 lashes). On the other hand, Tazir are the lesser offences. The punishment for

these offenses depends on the discretion of the judge61. This may include imprisonment (short

time), lashes (usually not more than 10 strokes), fine etc.

3.4 CRIME IN THE INTERNATIONAL SPHERE

Prior to the second world, the concept of crime was a nation-based concept and it was never

taken as a serious matter at the international sphere62. As a matter of fact, individuals were

not subject of international law. Since individuals are the subjects of crime, it means therefore

that there is no legal framework that could hold individuals responsible for criminal acts at

the international arena.

The story began to change after the horrendous practices witness in the Second World War

and it was believed that certain conducts were violations of universal norms and virtues and

that there was need for those guilty of such conducts to be brought to book. These conducts

were christened- crime against peace, war crimes and crimes against humanity.

Initially, an International Military Tribunal (the Nuremberg Trial) was established63 to try war

crimes committed by the European Axis Powers, but today, such crimes are now regulated by

a UN Treaty64 and the International Criminal Court65 was established to try such war crimes

and crimes against humanity66.

4.0 THEORIES OF PUNISHMENT

In Nigeria’s criminal justice system, once an accused person has been found guilty of an

offence, the next step is for the judge or magistrate to pass sentence on him/her. The sentence

passed is the punishment that accused person is to serve or the reward for committing the

offence.

61 R. Peters: Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century, New York, Cambridge University press, 2005, p.6562 Although, the Ottoman Government was indicted for crime against humanity by the Allied powers in 1915 after the First World War. this is more or a less a unilateral act from the allied powers and there was no legal frame work in terms of treaty or even customary international law in force at that time to have warranted the indictment of the ottoman government.63 See: The London Charter of the International Military Tribunal64 See Rome Statute of the International Criminal Court, (adopted July 17, 1998), 37 I.L.M. 999 (1998)65 Ibid. 66 Some of those who have been tried for war crime include:

12

Punishment is a word that is used in so many ways. It is a concept that is used in schools,

within families or other institutions. The punishment that we refer here is the formal sanction

that is meted on whoever that is found guilty of a criminal act in accordance with the laid

down law. In this respect, Garland was quoted to have defined punishment as a legal process

whereby violators of criminal law are condemned and sanctioned in accordance with

specified legal categories and procedures67.

Punishment, in the sense of a sanction imposed for a criminal offence, consists of five

elements:

a. It must involve an unpleasantness to the victim.

b. It must be for an offence, actual or supposed.

c. It must be of an offender, actual or supposed.

d. It must be the work of personal agencies; in other words, it must not be the natural

consequence of an action.

e. It must be imposed by an authority or an institution against whose rules the offense has

been committed

For a better understanding of the place of punishment within the criminal justice system and

the society in general, it will be apt to briefly discuss the theories of punishment as professed

by moral philosophers, social theorists, and criminologists.

In the philosophical debate about punishment, two main types of theories of punishment

dominate: utilitarian theory and retributive theory. These philosophical theories have in turn

generated further theoretical discussions about punishment concerned with deterrence,

retribution, incapacitation, rehabilitation, and more recently, restorative justice68.

4.1.1 RETRIBUTION

Retribution is the theory that punishment is justified because it is deserved. Systems of

retribution for crime have long existed, with the best known being the lex talionis of Biblical

times, calling for “an eye for an eye, a tooth for a tooth, and a life for a life”. The basic

principle of lex talionis is that punishment should inflict the same on the offender as the

offender has inflicted on his or her victim69. 67 C. Banks, Criminal Justice Ethics: Theory and Practice, London, Sage Publications, Inc., 2009, p.10468 Ibid. P.10569 T. Frymer-Kensky: ‘Tit for Tat: The Principle of Equal Retribution in Near Eastern and Biblical Law’ The Biblical Archaeologist, Vol. 43, No. 4 (Autumn, 1980), pp. 230-234; For other accounts on retribution as a theory of punishment, see: D. Gray: ‘Punishment as Suffering’, VANDERBILT LAW REVIEW, Vol. 63, 2010-

13

Banks has argued that this is a crude formula because there are many crimes to which it

cannot be applied70. He observed that what punishment ought to be inflicted on a rapist under

lex talionis? Should the state arrange for the rape of the offender as his due punishment?

A further objection is found in the view that in a civilized society, certain forms of

punishment are considered too cruel to be defended as valid and appropriate. For example, a

sadistic murderer may horribly torture his or her victim, but society would condemn the

imposition of that same form of punishment on the offender. It can also be said that although

the death penalty may constitute a just punishment according to the rule of lex talionis, it

should nevertheless be abolished as part of “the civilizing mission of modern states”

4.1.2 DETERRENCE:

People are deterred from actions when they refrain from carrying them out because they have

an aversion to the possible consequences of those actions71. To utilitarian philosophers like

Bentham, punishment can be justified only if the harm that it prevents is greater than the

harm inflicted on the offender through punishing him or her. In this view, therefore, unless

punishment deters further crime, it simply adds to the totality of human suffering 72. In other

words, utilitarians justify punishment by referring to its beneficial effects or consequences.

Bentham is considered the main proponent of punishment as deterrence73, and he expressed

his early conception of the notion as follows:

also available at http://ssrn.com/abstract=1573600; J. Bronsteen, C. Buccafusco and J.S. Masur: ‘ Retribution and the Experience of Punishment’, California Law Review, vol. 98 no.5, 201070 C. Banks, supra, pp. 116-11771 C.M.V Clarkson and H.M Keating: Criminal Law: Text and Materials, 3rd ed., London, Sweet & Maxwell, 1994, p.35 72 Banks, supra. It should be noted that Beccaria and Bentham were regarded as the leading figures in this school of thought. They are usually regarded as the classical school of thought. Beccaria believed that every individual possess freewill and is also a rational being. AN individual rationalises every action and exercises his freewill to either do or not to do depending on the personal satisfaction he will derive. Therefore, he believed that punishment is needed to check against deviant acts that might result from an individual exercise of freewill in the commission of crime. To Becarria, punishment must be swift, clear and severe. Bentham developed this idea and brought a scientific approach to the study of punishment. Bentham believed that an individual is placed under two master- pain and pleasure. Before a man acts, he would have consider the pleasure and pain attached to the act. Man will always engage in what will result in pleasure and avoid pain. Therefore, in other to make criminal acts less profitable, the pain attached (punishment) should be a bit higher that the pleasure. Therefore, punishment, though an evil in itself will be justified if the harm it prevents (deterrence) is more than the harm it causes to the individual. He styled this concept- Hedonistic Calculus which could be described as a cost-benefit approach studying crime and punishment. He therefore proposed that the more serious a crime, the greater the punishment. This underscores the idea of graduation of punishment.73 A.O Bakare, ‘History of Deterrent’, LLM Seminar Paper, Faculty of Law, University of Lagos, 2011, D.A Iroko: ‘Theory of Deterrence’, LLM Seminar Paper, Faculty of Law, University of Lagos, 2011

14

Pain and pleasure are the great springs of human action. When a man perceives or supposes

pain to be the consequence of an act he is acted on in such manner as tends with a certain

force to withdraw him as it were from the commission of that act. If the apparent magnitude

be greater than the magnitude of the pleasure expected he will be absolutely prevented from

performing it74.

Two classes of deterrence have been identified. There is individual and general deterrence.

Individual deterrence involves deterring someone who has already offended from

reoffending; general deterrence involves dissuading potential offenders from offending at all

by way of the punishment administered for a particular offense. This is better captured by the

Court of Appeal in Ejunjobi v. Federal Republic of Nigeria as follows:

A proper sentence posed in public serves the public in two ways. It may deter others

who might be tempted to try crime…Such sentence may also deter the particular

criminal from committing a crime again or induce him to turn from criminal to

honest living75

4.1.3 REHABILITATION

Rehabilitation theory regards crime as the symptom of a social disease and sees the aim of

rehabilitation as curing that disease through treatment. In essence, the rehabilitative

philosophy denies any connection between guilt and punishment

It is believed that the offender has made a choice to commit a crime and must be liable for the

decision. Offender’s liability ought to go with a corresponding right on his or her part to

“return to society with a better chance of being a useful citizen and staying out of prison.”76

Rehabilitation is to ensure that the offender would be able to be re-absorbed into the society

once he finishes his jail term. In other words, the state has obligation to make arrangement in

prison to enable the offender fits back into the society.

Consequently one of the cardinal objectives of the prison system is to wean prisoners away

from crime and other anti-social activities and give those directions that will enable them lead

normal lives again. The idea is to employ the period of incarceration to impact on the

offenders, the need to be law abiding citizens and at the same time develop their potentials.

74 ibid75 (2002) FWLR (pt 105) 896 at 93776 C.Banks, supra, p.116

15

This is to make them useful to the society when they come out and ensure that they do not

return to their old ways77

The objective of rehabilitation has been to encourage the offender to desist from crime in the

future by providing him with, for example, social support in the form of probation or by

giving him a second chance in life by granting him an absolute conditional discharge or by

imposing a nominal fine or ordering him to be of good behaviour for specified period78.

4.1.4 INCAPACITATION

Penal practice has always tried to estimate the risk that individual offenders might commit

crimes in the future and has tried to shape penal controls to prevent such crimes from

happening79. Through the incapacitative approach, offenders are placed in custody, usually

for long periods of time, to protect the public from the chance of future offending80.

Incapacity may also be present in other forms of punishment such as parole, in the sense that

although the offender is free from incarceration, he or she is placed under supervision, which

may restrict his or her opportunity to commit crime81.

4.1.5 RESTORATION

Restorative justice has been the dominant model of criminal justice throughout most of

human history for all the world’s peoples. It is grounded in traditions from ancient Greek,

Arab, and Roman civilizations and in Hindu, Buddhist, and Confucian traditions. Restorative

justice means restoring victims as well as offenders and the community in addition to

restoring lost property or personal injury.

According to Ilori, the concept of restorative justice is based on the belief that parties to a

conflict ought to be actively involved in resolving it and mitigating its negative

consequences. It is also based in some instances, on a will to return to local decision-making

77 O.O Adenike : ‘Resocialization of Offenders', LLM Seminar Paper, Faculty of Law, University of Lagos, 201178 E. Kolawole and A.A. Kolajo: ‘The Principles and Practices of Sentencing in Nigeria’ in Legal Essays in Honour of B.O Babalakin, Ibadan, Spectrum Books Limited, 2006, p.13479 A. Kumari: ‘Role of Theories of Punishment in the Policy of Sentencing’, p.25 at http://ssrn.com/abstract=956234 (Accessed 20/2/12)80 The recent sentence passed on Umar Farouk Mutallab, the popular ‘underwear bomber’ by the US Court is illustrative on this. The court is of the opinion that Mutallab’s utterances showed that he would continue to be a threat to the security of the United State and hence his denial of parole.81 The case of ... who was just released from Uk prison and allowed to constinue to stay at home but with no access to phone, internet or other communication devices. It is also ordered that he carry an electronic intelligence device so as to monitor his activities.

16

and community building. These approaches are also seen as means to encourage the peaceful

expression of conflict, to promote tolerance and inclusiveness, build respect for diversity and

promote responsible community practices82

4.2 PUNISHMENT UNDER NIGERIAN LAW

Having considered the various theoretical approaches to punishments, it is pertinent to

consider the punishments provided in our criminal laws to determine to what extent they

reflect the various theories examined.

4.2.1 DEATH PENALTY:

This is prescribed for capital offences. Capital offences include: murder83 , armed robbery84,

treason85 and treachery, 86. In the Northern part of the country, the following offences too

carry capital punishment i.e Adultery87, Rape88 (where the rapist is married), Sodomy89 (if

married), Robbery90 (where death was caused from the crime), Intentional Homicide91 (where

the relatives of the victim do not opt for payment of blood money – ad-diyyah). It could be

said that this is perfect example of the retribution.

Under the Criminal procedure Act and the Criminal Procedure Code, a pregnant woman is

not to be sentenced to death but may be given a life imprisonment in lieu92. However, it is

doubtful if this position is applicable under the Shariah Penal Codes. At best, what could

happen is that the woman would be allowed to deliver before the execution is carried out.

Young persons who have not attained the age of seventeen at the time of commission of the

offence shall not be sentenced to death as well93.The position seems to be different under the

Shariah penal Code. The relevant age is that of a mukalaf94 which is not explicitly stated in

the law.

82 O.O Ilori: ‘Criminal Arbitration’ LLM Seminar Paper, Faculty of Law, University of Lagos, 201183see 2.319(1), Criminal Code Act, CAP 38, LFN, 200484 see s.1(2)(b), Robbery and Firearms (Special Provisions) Act CAP. R11 LFN. 2004;85 see s.37(1) , Criminal Code Act, supra;86 see s.49A, criminal Code Act, supra87 S.127(b) of Shariah Penal Code of Zamfara88 Ibid. S.129(b)89 Ibid, S.131(b)90 Ibid. S.153(c)91 Ibis. S.200(a)92 See 368(2) Criminal Procedure Law; section 270 Criminal Procedure Code; section 271 Criminal Procedure Code.93See Modupe Johnson v. State (1988) 4 NWLR 130 (Pt.87). The Court shall however in this circumstance detain such young person at the pleasure of the President or Governor94 Ibid. S.48 defines a mukallaf as a person possessed of full legal and religious capacity. This in my opinion could range between the age of 9 and 12.

17

4.2.2 IMPRISONMENT

Imprisonment has been provided as a form of punishment under all the criminal statutes in

Nigeria. It could be said that imprisonment could serve as a means of deterrence,

rehabilitation or incapacitation for recidivists. It ranges from few days to a life imprisonment

depending on the gravity of the offence95.

4.2.3 FINES

Fine is an integral part of our punishment in Nigeria. Fine could serve as an individual

deterrence or just desert. It is usually imposed together with or as alternative to

imprisonment. It could also be imposed in lieu of imprisonment as well96.

4.2.4 CORPORAL PUNISHMENT

This is the physical chastisement offenders. In Nigeria, canning97, haddi lashing98 or even the

removal of wrist99 are provided in our criminal statutes. In the modern western world

corporal punishment is seriously out of fashion100. These punishments are rooted in

deterrence and incapacitation theories. It is believed that public chastisement is an effective

punishment in an African society and no one meted with this kind of punishment would want

to face it the second time. Removal of wrist especially in the SPC as well is meant to deter

and incapacitate the offender. Whenever he gazes at the hand, he would always remember the

offence. Where he is caught the second time, the second wrist is removed and surely such a

person may not be able to commit a crime of theft again.

4.2.5 COMPENSATION

Compensation is provided under various criminal laws101. This is a reflection of the

restorative theory justice. It is more exhibited in the SPC where especially in homicide cases,

the relatives of the victim is given an option of demanding compensation instead of death

sentence102. For unintentional homicide, the punishment is the payment of blood money as

against life sentence in other laws103. Where the offence of causing hurt is committed, the

95 See s. 377 CPA, s. 93 SPC, s. 380 CPC 96 See s.382 CPAs97 See section 387 Criminal Procedure Act and section 77 Penal Code.98 See s.307 (1) of the Criminal Procedure Code. It should be noted that Haddi Lashing as a form of punishment is essentially directed towards subjecting a convict to disgrace rather than infliction of pain99 Applicable only under the Shariah Penal Code100 For instance, It was abolished for judicial purposes in England and Wales in 1948. See G. Scarre: ‘Corporal Punishment’ in Ethical Theory and Moral Practice, Vol. 6, No. 3 (Sep., 2003), pp. 295-316101 section 270 Criminal Procedure Act and section 365 Criminal Procedure Code, section 93 SPC102 See section 200(b) of SPC103 See s.201 SPC

18

convict shall pay compensation in addition to any other corporal punishment that the judge

may impose104.

f. Other punishments that are available include binding over105, conditional discharge106,

probation orders107. Others include warning, boycott, reprimand, and public disclosure108.

5.0 SUMMARY / CONCLUSION

Legislating against crimes and award of punishments are two necessary ingredient of a

peaceful society. In Nigeria, what constitute a crime has been well spelt out in our various

criminal, penal and Shariah codes. The punishments are also stipulated. As a matter of fact,

the constitution has provided that no one shall be punished for any crime or offence except

such crime is clearly written in a particular law.

An examination of our penal laws clearly showed the diversity of the Nigerian society. What

is a crime is an expression of the societal norm and value. This is why actions like sodomy,

adultery, lesbianism etc are crimes in the Northern part of the country, yet, they are not one in

the southern part of the country. Bigamy for instance, is an offence in the southern part of the

country except Lagos while same is no offence at all in the Northern part of the country.

In the areas of punishment, one may say the criminal justice system has not been very

successful in this area. It is observed that punishments are arbitrarily passed in our courts.

There are no concrete sentencing guidelines backed by law109 and even if there was one, it not

usually being followed by the courts110.

Plea bargaining is another concept that have been admitted into our criminal justice system111.

In my opinion, the practice of this concept has eroded the average Nigeria’s confidence in the

sentencing practice of the courts. This is not far fetched. There has not been anyone convicted

of corrupt practice (who has opted for plea bargaining) that has been asked to spend over a

104 See s.219 SPC. In addition, where the offence is grievous bodily hurt, the convict would be required to pay diyyah105 See sections 300 and 309, Criminal Procedure Act and section 25 Criminal Procedure Code106 section 435 Criminal Procedure Act107 section '436 Criminal Procedure Act108 See generally section 93(1) of Sharia Penal Code109 Except in ACJL where the 110 Examples abound in the pages of our news papers. One is familiar with cases where someone convicted of stealing a cow or bag of rice is sentenced to 3 years imprisonment while someone who steals say billions of naira may get less than a year sentence.111 A.O Yekini: ‘Plea Bargaining: A comparative Analysis between the Provisions of the Administration of Criminal Justice Law of Lagos State and Islamic Law’ in The Nigerian Law Students’ Journal, Lagos, De Quintessence Publishers, 2010

19

year behind bars despite the fact that ‘mind-blowing’ sums of money are involved. In the end,

it would be thought by an average Nigeria that there is no justice in the country as the

punishment that was meant to deter people from committing crime is almost absent. Hence, it

has impacted negatively on the trend and occurrence of crimes in Nigeria.

5.1 REFRENCES:

BOOKS

1. A. Ibidapo-Obe: A Synthesis of African Law, Lagos, Concept publications Limited, 2005, p.34

2. A.G Karibi-Whyte: History and Sources of Nigerian criminal law, Ibadan, Spectrum law publishing, 1993

3. C. Banks, Criminal Justice Ethics: Theory and Practice, London, Sage Publications, Inc., 2009, p.104

4. C. Elliot and F Quinn, Criminal Law, 5th ed., London, Pearson Education Limited, 2004, p.8

5. C.M.V Clarkson and H.M Keating: Criminal Law: Text and Materials, 3rd ed., London, Sweet & Maxwell,

1994, p.35

6. C.O Okonkwo and M.A Naish: Criminal Law in Nigeria, London, Sweet & Maxwell, 1980, p.19

7. D.O Edewor: Theory Of Crime And Crime Control, National Open University of Nigeria, 2010

8. E.D Edelstein and R.J Wicks: An Introduction to criminal Justice, New York, McGraw-Hill Inc., 1977,

p.41

9. E. Essien: Introduction to Nigerian Criminal Law, A.Ibidapo-Obe and A. Bello eds., Lagos, National open

10. University of Nigeria, 2008, pp. 15-16

11. E. H Johnson, Crime, Correction and Society, Homewood, The Dorsey Press, 1968, p.13

12. F., Okeshola : Patterns and Trends of Crime in Nigeria, Lagos, National Open university of Nigeria, 2008

13. G williiams: Textbook of Criminal Law, 2nd ed., London, Stephens and sons, 1983, p. 27

14. K. U. Omoyibo: Contemporary Issues in Criminology and Security Studies, Lagos, National Open

University of Nigeria, 2010, p.16

15. M. Lawan, I.N. Sada, and S.S Ali: An Introduction to Islamic Criminal Justice: A Teaching and

Learning Manual, UK Centre for Legal Education, 2008, p.2

16. M. S. El-Awa: Punishment in Islamic Law, Indianapolis, American Trust Publications, 1998, p.1.

17. R. Peters: Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the

Twenty-first Century, New York, Cambridge University press, 2005, p.65

18. S.T. Reids: Crime and Criminology, 7th ed. Orlando, Harcourt Brace College Publishers, 1994, p.4

19. T.A Oduwole and N. Adegoke : Traditional and Informal Mechanisms Of Crime Control, National Open

University of Nigeria, (n.d)

20. V.A., Usoh: The Sociology of Punishment and Correction, B.F Okeshola, ed., Lagos, National open

University of Nigeria, n.d, p. 119

ARTICLES

20

1. A. Kumari: ‘Role of Theories of Punishment in the Policy of Sentencing’, p.25 at

http://ssrn.com/abstract=956234 (Accessed 20/2/12)

2. A.O Yekini: ‘Plea Bargaining: A comparative Analysis between the Provisions of the Administration of

Criminal Justice Law of Lagos State and Islamic Law’ in The Nigerian Law Students’ Journal, Lagos, De

Quintessence Publishers, 2010

3. K. U. Omoyibo: Contemporary Issues in Criminology and Security Studies, Lagos, National Open

University of Nigeria, 2010

4. P. Tappan: ‘Who is the Criminal?’ in American Sociological Review (1964:32) p. 96

5. S. Harent: ‘Original Sin’ in The Catholic Encyclopedia, New York, Robert Appleton Company,1911

6. A.O Bakare, ‘History of Deterrent’, LLM Seminar Paper, Faculty of Law, University of Lagos, 2011,

7. D.A Iroko: ‘Theory of Deterrence’, LLM Seminar Paper, Faculty of Law, University of Lagos, 2011

8. Frymer-Kensky: ‘Tit for Tat: The Principle of Equal Retribution in Near Eastern and Biblical Law’ The

Biblical Archaeologist, Vol. 43, No. 4 (Autumn, 1980), pp. 230-234;

9. G. Scarre: ‘Corporal Punishment’ in Ethical Theory and Moral Practice, Vol. 6, No. 3 (Sep., 2003), pp.

295-316

10. T.D. Gray: ‘Punishment as Suffering’, Vanderbilt Law Review, Vol. 63, 2010- also available at

http://ssrn.com/abstract=1573600;

11. J. Bronsteen, C. Buccafusco and J.S. Masur: ‘Retribution and the Experience of Punishment’, California

Law Review, vol. 98 no.5, 2010

12. O.O Adenike : ‘Resocialization of Offenders', LLM Seminar Paper, Faculty of Law, University of Lagos,

2011

13. O.O Ilori: ‘Criminal Arbitration’ LLM Seminar Paper, Faculty of Law, University of Lagos, 2011

STATUTES

1. Criminal Law of Lagos State, Law no. 11, 2011

2. Criminal Code Act, cap. C38 Laws of the Federation of Nigeria 2004

3. Criminal Procedure Law;

4. Corrupt Practices and Other Related Offences Act, 2000.

5. Penal Code Law, of Northern Region;

6. Robbery and Firearms (Special Provisions) Act CAP. R11 LFN. 2004;

7. The Constitution of the Federal Republic of Nigeria 1999

8. Police Act

9. Shariah Penal Code of Zamfara

10. The Holy Quran 2 verse 24

11. The Independence Constitution, 1960

CASES

21

1. Aoko v. Fagbemi (1961) 1 All NLR 400

2. AG Lagos v AG Federation and Ors [2003] 12 NWLR (PT. 833) 1.

3. AG Ondo v AG Federation (2002) 9 NWLR (Pt.772) 222

4. Bature V The State (1991) 5 NWLR (PT. 194) 697

5. FRN v Osahon & Ors [2006] 4 MJSC 1

6. Onogoruwa v. State (1993) 7 NWLR (Pt. 303) 49 at p. 85 Paras C-D

7. R v.Gibbins and Proctor (1918) 13 Cr.App. 134

8. Udokwu v. Onugha (1963) 7 ENLR P. 1

9. Williams V. The State (1977) NSCC 37;

22