A court of law exists to impose appropriate punishment or pass considered sentences on the accused person where he is found guilty of committing a crime. The punishment for offences vary and as opined by some legal scholars, punishment is an expression of the community’s disapproval of a crime… for a community which is too ready to forgive a wrongdoer may end up condoning crime. In view of this, punishment for simple offences in Nigeria may be through imposition of fines, imprisonment, caning/flogging, repatriation/deportation, parole, correctional orders, restitution, curfew orders, binding-over orders, conditional discharge, probation order, compensation or restitution, payment of prosecution costs, forfeiture, deposit of money for bail, victim offender mediation, community service order and other restorative justice measures. All these are in line with the United Nations Standard Minimum Rules for Non-Custodial Measures of 1990 (Tokyo Rules) which basic principles are to promote greater community involvement in the management of criminal justice taking into account the political, economic, social and cultural conditions of each country.

According to law, all offences other than felonies or misdemeanours are simple offences. (See Section 3 of the Criminal Code and Section 5 of the Criminal Law of Lagos State) Simple offences are minor, petty or categories of not-so-serious crimes which maximum punishment attract imprisonment up to six months in a prison. For example, 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 and engaging in acts or conduct likely to cause a breach of the peace, attempt to commit suicide, desertion of a pregnant woman/girl and other minor sanitation offences. Any offence involving the use of arms, sexual offences and other felonies does not come under simple crimes.

The reasoning behind non-custodial punishment or sentencing for a simple offence has been that criminal justice does not have to incarcerate offenders in order to be effective. In other words, convicted offenders do not need to be sent to prison for every minor infraction of the law. The maxim is, the law should not concern itself with trifles. (de minimis non curat lex). For example, why charge a man to Court for stealing the sum of N3,000? Why not consider one of the sentencing dispositions in the Tokyo Rules which prescribe verbal sanctions such as admonition, reprimand and warning? As an alternative to custodial sentencing, such offender may only be required to do some work which will be beneficial to the community.

The contention here is that the state’s aim should not be to mass produce convicts but rather to make the culprit pay back for his bad misdeeds while deterring others who might be tempted to try the crime or deter the particular criminal from being a repeat offender or to also induce the offender to turn from a criminal and choose an honest life. The objective is to correct the offender, convince him of his guilt and eventually reform him. Section 460 of the Administration of Criminal Justice Act 2015 provides that the aim of community service order is to reduce prison congestion, rehabilitate prisoners for productive purposes and prevent convicts from mixing with hardened criminals. Community service orders therefore constitute a form of corrective justice system which does not dispense harsher, cruel and severe sentencing than necessary. It aligns with the theory that punishment should be based on the seriousness of the crime and the more serious the crime, the more serious and severe the punishment should be. This is a utilitarian rationale for proportionality in punishment and was made obvious in Onyilokun v COP (1981) 2 NLR, 49 where it was held that in sentencing, a trial court is bound to consider many factors such as the seriousness or otherwise of the offence.

In Nigeria it has been observed that a large percentage of courts usually jettison community service orders for imprisonment especially where simple offences are concerned For instance, for not switching off his phone while in court, a man was jailed, for one month imprisonment by a Magistrate Court in Lagos while another Magistrate Court sentenced a 28 year-old man to one month imprisonment for a theft of property worth N16,500. On the other hand there are also instances where the courts made use of community service orders, such as in a Court in Kaduna State where a 70 year-old man was sentenced to 5 lashes of cane for stealing a goat. A 51 year-old housewife was also ordered by a Court to sweep the entire court premises for one hour and her offence was simply contempt of court while a 30-year old man who assaulted someone was ordered to clean the 60 ceiling fans in all the 10 courts at Ebute Metta Magistrate Court.

In other jurisdictions such as in the United States of America, Judges are given a fair amount of discretion to award what is called creative punishments as community service orders. For instance, a Pharmacist was ordered to write a book while on a two-year probation as punishment for a white-collar crime. A woman was sentenced to read and summarise the Old Testament Bible book of Job for driving drunk in the wrong lane when she crashed into another car. A woman who escaped from a taxi without paying for a 30-mile drive was ordered to either serve 60 days in jail or walk within 48 hours. She chose to walk and the Judge said the defendant will be monitored with a GPS device to make sure she walks the 30 miles.

In the United Kingdom, there is a law in place which specifically empowers a court to order community service in form of a good-behaviour bond. For instance, a Judge took the unusual step of confiscating a woman’s mobile phone which rang during a court session. A nurse who tricked a man into believing that he had fathered a child with her during a one night-stand was ordered to go on a ‘thinking skill programme’ to help her realise that her behaviour was bad. For smashing the hotel’s glass panel door while drunk, a man was told to pay for the replacement and to take part in a 40-day rehabilitation clinic for alcohol misuse. A rehabilitation exercise was also ordered for a homeless beggar because the Court felt criminalizing begging is not ideal. An 82-year old glaucoma sufferer was given an 18-month community order and banned from driving for two years, after she admitted causing death by careless driving.

In India, a rich businessman was ordered 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 must use their skills to farm, mend roads and build houses for vulnerable people.

No doubt, these non-institutional methods for simple offences while addressing the reduction of growth in prison population will also fulfil the seven objects of punishment provided under Section 401 of ACJA 2015. It is an opportunity for convicts to re-orientate their mindsets and amend their ways for the better. It will correct, redeem, rehabilitate, regenerate, educate and restore the offender to the status of a law-abiding citizen. Therefore, a creative sentencing is just, more human and more effective than incarceration.

* This article was first written in the Crime & Punishment section of a Lagos Chief Detective Crime Magazine in June 2014 as “Non-Institutional Methods of Punishment: How Creative is the Nigerian Correctional Justice System?” by OluwaTomi A. Ajayi, Legal Practitioner and member, African Women Lawyers’ Association (AWLA Nigeria)