By Sam Omotoso Esq, ACarb
Introduction
Few years back in the United States, a singer who was caught with narcotics was made to stand trial. He was found guilty and upon conviction he was asked to sing one of his very popular songs in court, and also sing at an orphanage for one month under supervision, after which he was said to have fully discharged the punishment ascribed to him. This form of punishment is known as non-custodial punishment.
Non-custodial sentence is a criminal sentence not requiring imprisonment. Thus it 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.
Forms of non-custodial punishment
A fine is the most common form of non-custodial punishment given by the courts. The offender must pay a fixed sum of money. If they don’t pay, they could get a prison sentence. This form of non-custodial sentence is mostly optional. Hence the sentence could be fine or imprisonment.
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, programs and treatment. In instances like this, the court can order that the offender work with the environmental service department in a state to pick dirt on the street.
Driving Disqualification under which a court can impose a driving disqualification period preventing a person from driving during a given period of time.
Why should non-custodial sentence be encouraged?
The words of the former Chief Judge of Lagos State, Hon. Justice Opeyemi Oke (rtd.) is instructive here;
“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.”
There are several reasons. In my opinion, the most germane reason will be the fact that there is a great need to entrench certain measures to drastically decongest the Nigerian Correctional Facilities.
For clarity, let us view the 2020 statistics from the Nigerian Correctional Service. The population of the total inn mates was about 72,627. Exactly 50,737 (70%) had not been tried. This includes those that were locked in a correctional facility (prison) for stealing petty things like a fake wristwatch, a phone charger or even a loaf of bread, and unfortunately they might remain in that situation for long. In certain instances, the years some inmates spend awaiting trial is far more than the years of imprisonment ascribed to the crime they are awaiting trial for. Not forgetting the fact that they might be innocent.
The large number of those awaiting trial has overstretched the capacity of most Nigerian correctional facilities resulting in overcrowding of such correctional facilities. Hence it is imperative that for minor offences the non-custodial method of punishing offenders should be considered.
It is trite in law that for a person to be convicted for an offence, that act must be prohibited by law (Nulla poena sine lege). Furthermore, the punishment should as well be prescribed. It will therefore suffice to state that for non-custodial punishment to be meted out; it must be prescribed in our laws. The question that will then beg for an answer is whether or not non-custodial punishment is permitted and prescribed in the Nigerian legal jurisprudence. The answer is YES.
The Nigerian Correctional Service Act 2019 established the Nigerian Non-Custodial Service. Under part II, it provides for its functions, power to make regulations and guidelines and allowing for parole, 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). It will therefore suffice to state that Non-custodial punishment is not entirely strange to our legal system, however it is still novel.
Furthermore, they have been instances where the courts in Nigeria have tested the waters of the non-custodial punishment system.
According to the cable news report on the 22nd of October 2022, a Judge sitting at the High Court in Oyo state ordered a convict of Advance Fee Fraud to sweep the Court premises for 6 months and refund the 2,400 dollars, SUV, laptop and iPhone which he procured as a result of his illegal activities. This was on request of the convict’s counsel.
On 18th August 2021, a Sharia court in Fagge, Kano state ordered a convict who was found guilty of stealing the Holy Qur’an to sweep the Mosque premises for 30 days as punishment.
A Judge of the FCT High Court also ordered a convict to sweep Bannex plaza premises for two months.
Conclusion
It is evident, that certain judges already use the Non-Custodial punishment option while most judges are still in the dark. In my candid opinion, the non-custodial sentence is largely beneficial, due to the fact that it will aid decongestion in our correctional facilities and still meet the three major purposes of punishing offenders which includes – deterrence, rehabilitation and retribution.
