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. IBIDAPO OBE

PRESENTED BY: YEKINI ABUBAKRI OLAKULEHIN MATRIC NO: 119061086 MARCH 2012

TABLE OF CONTENT 1.0

2.0 3.0 4.0 4.1.1 4.1.2 5.0 5.1 5.2 5.3 5.4 6.0 6.1.1 6.1.2 6.1.3 6.1.4 6.1.5 6.1.6 6.2 6.2.1 6.2.2 6.2.3 6.2.4 6.2.5 7.0 INTRODUCTION THE DEFINITION OF CRIME HISTORICAL PERSPECTIVE ON CRIME AND CRIMINAL LAW APPLICABLE LAWS THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA STATUTES PURPOSE, ELEMENT AND CLASSIFICATION OF CRIME PURPOSE OF CRIMINAL LAW ELEMENTS OF CRIME CLASSIFICATION OF CRIMES CRIME IN THE INTERNATIONAL SPHERE THEORIES OF PUNISHMENT DETERRENCE: RETRIBUTION JUST DESERT REHABILITATION INCAPACITATION RESTORATION PUNISHMENT UNDER NIGERIAN LAW DEATH PENALTY: IMPRISONMENT FINES CORPORAL PUNISHMENT COMPENSATION SUMMARY / CONCLUSION

1.0

INTRODUCTION

Crime and punishment are two concepts that are vital to the harmony and peaceful coexistence 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.

2.0

THE DEFINITION OF CRIME

The word crime has its origin in the latin word crimen meaning accusation, indictment, charge or fault1. 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 concept 2. What a crime is to a

F., Okeshola : Patterns and Trends of Crime in Nigeria, Lagos, National Open university of Nigeria, 2008 For 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
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sociologist may not necessary accord with a lawyers 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.

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

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 For instance, in the Northern part of the country, Adultery is an offence while in the southern part it does not constitutes an offence 4 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, 2008 7 E. H Johnson, Crime, Correction and Society, Homewood, The Dorsey Press, 1968, p.13

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 misdemeanour9. Glanville Williams using crime interchangeably with offence defined it as a legal wrong that can be followed by criminal proceedings which may result in punishment10 It is in this sense that lawyers approach the concept of crime.11

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
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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-inhabitants 9 P. Tappan: Who is the Criminal? in American Sociological Review (1964:32) p. 96 10 10 G williiams: Textbook of Criminal Law, 2nd ed., London, Stephens and sons, 1983, p. 27 11 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

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.

3.0

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 follows 16.

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.

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
C.O Okonkwo and M.A Naish: Criminal Law in Nigeria, London, Sweet & Maxwell, 1980, p.19 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 land 15 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 24 16 S. Harent: Original Sin in The Catholic Encyclopedia, New York, Robert Appleton Company,1911 17 K. U. Omoyibo: Contemporary Issues in Criminology and Security Studies, Lagos, National Open University of Nigeria, 2010, p.16
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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 kings subjects was considered to have injured the king18. Consequently, the state by way of the kings 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-Nammu20. 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

S.T. Reids: Crime and Criminology, 7th ed. Orlando, Harcourt Brace College Publishers, 1994, p.4 Ibid. 20 D.O Edewor: Theory Of Crime And Crime Control, National Open University of Nigeria, 2010 21 E.D Edelstein and R.J Wicks: An Introduction to criminal Justice, New York, McGraw-Hill Inc., 1977, p.41 22 A. Ibidapo-Obe: A Synthesis of African Law, Lagos, Concept publications Limited, 2005, p.34 23 ibid
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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

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 preindependence 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.

4.0

APPLICABLE LAWS

In Nigeria, crimes and punishments are governed by the following legislations: 4.2 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,
24 For a detail exposition of administration of justice under customary law and related issues, see: A. IbidapoObe: 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 25 A. Ibidapo-Obe, supra, p.43 26 Ibid, p.44 27 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.

it is within the legislative competence of both the Federal and State governments to legislate on it within their territorial limits 29. 4.3 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 Code30. In 2000, some northern states31 adopted the Shariah Penal Code32. Some offences covered by this law are faith-based. They contain the hudud, Qisas and tazir offences 33 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) Act34, The National Drug Law Enforcement Agency Act 35 and Customs and Excise Management Act36.

5.0 5.1

PURPOSE, ELEMENT AND CLASSIFICATION OF CRIME PURPOSE OF CRIMINAL LAW

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
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 Governments 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 See C.O Okonkwo and M.A Naish, supra, p.9 31 The states are: Zamfara, Sokoto, Jigawa, Kaduna, Yobe, Niger, Kebbi, Kano, Bauch, Borno, and Gombe 32 See for instance, Shariah penal Code of Zamfara State, law no. 2000 33 Hudud are offences that carry fixed punishment; Qisas are offences that carry Retaliatory punishment and ta'azir are penal/exemplary punishments 34 Act No.1 2004 35 CAP N30, LFN 2004 36 CAP C45, LFN 2004

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. 37 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 gambling38.

For the first time in Nigeria, a criminal statute39 has clearly spelt out the objects of criminal law. Some of the objectives identified in the law are40: 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

T.A Oduwole and N. Adegoke : TRADITIONAL AND INFORMAL MECHANISMS OF CRIME CONTROL, National Open University of Nigeria, (n.d) 38 ibid 39 Criminal Law of Lagos State, Law no. 11, 2011 40 Ibid., S.2

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Apart from this, the Shariah Penal Codes in the Northern part of the country are based on five basic objectives 41. 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 the subjects. Hence, any act that tends to jeopardise the following five things constitute serious offence. They are Faith, Life, Honour, Property, and Intellect42. 5.2 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 trial43. 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 only44. 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,

It is generally agreed among Islamic jurists that the Shariah has been handed down basically to protect the five basic objectives. These objectives are called Maq sid ash-Shar ah 42 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; womens 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 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-D 44 E. Essien: Introduction to Nigerian Criminal Law, A.Ibidapo-Obe and A. Bello eds., Lagos, National open University of Nigeria, 2008, pp. 15-16
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depending on the consequence of such an act 45. For instance stabbing someone may form an actus reus of murder if the victim dies or of causing grievous bodily harm if the victim survives 46.

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 matter47. Some actus reus are result oriented. This means that the actions alone do not constitute the offence but rather the resultant effect 48. In some cases, failure to act may constitute an actus reus49.

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 requires 50.

5.3

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 offences 51. 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 more52.

C. Elliot and F Quinn, Criminal Law, 5th ed., London, Pearson Education Limited, 2004, p.8 See Williams V. The State (1977) NSCC 37; Bature V The State (1991) 5 NWLR (PT. 194) 697 47 See E.Essien, supra, p.15 48 For instance Murder.- the accused act must caused death 49 R v.Gibbins and Proctor (1918) 13 Cr.App. 134- a man and a woman were living together with the mans daughter. They failed to give the child food and she subsequently died. 50 E. Essien, supra, pp. 16-20. It should be added that some offences require guilty knowledge, while some are strict liability. 51 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. 52 Ibid.
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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 years53. 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 Tazir54. Hudud are offences that have penalties prescribed in fixed term in the Quran or the Sunnah55. They are the most serious offences. Examples include murder (death penalty); adultery (death 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 judge56. This may include imprisonment (short time), lashes (usually not more than 10 strokes), fine etc.

5.4

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 sphere57. As a matter of fact, individuals were

Ibid. Although, there are some penal code offences incorporated into the Shariah penal code which are not classified under Hudud Qisas or Tazir 55 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 56 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 57 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.
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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 established58 to try war crimes committed by the European Axis Powers, but today, such crimes are now regulated by a UN Treaty59 and the International Criminal Court60 was established to try such war crimes and crimes against humanity61.

6.0

THEORIES OF PUNISHMENT

In Nigerias 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.

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

See: The London Charter of the International Military Tribunal See Rome Statute of the International Criminal Court, (adopted July 17, 1998), 37 I.L.M. 999 (1998) 60 Ibid. 61 Some of those who have been tried for war crime include:
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whereby violators of criminal law are condemned and sanctioned in accordance with specified legal categories and procedures 62. 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 justice63.

6.1.1

DETERRENCE:

62 63

C. Banks, Criminal Justice Ethics: Theory and Practice, London, Sage Publications, Inc., 2009, p.104 Ibid. P.105

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People are deterred from actions when they refrain from carrying them out because they have an aversion to the possible consequences of those actions64. 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 suffering65. In other words, utilitarians justify punishment by referring to its beneficial effects or consequences. Bentham is considered the main proponent of punishment as deterrence66, and he expressed his early conception of the notion as follows:

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 it 67.

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 crimeSuch sentence may also deter the particular criminal from committing a crime again or induce him to turn from criminal to honest living 68

C.M.V Clarkson and H.M Keating: Criminal Law: Text and Materials, 3rd ed., London, Sweet & Maxwell, 1994, p.35 65 Banks, supra 66 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 67 ibid 68 (2002) FWLR (pt 105) 896 at 937

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6.1.2

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.

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

6.1.3

JUST DESERT

Retribution was based on the assumption that all offenders who violate the same provision of the penal law deserve the same punishment. But behavioural scientists pointed out that no

69 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, 2010also 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, 2010 70 C. Banks, supra, pp. 116-117

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two offenders who commit the same crime are completely alike in motivation, personality, intelligence, and potential for rehabilitation71.

In the early 70s, a new thought emerged especially in the United State which advocated for just desert as a form of punishment. Prominent among the proponents is Von Hirsch. Just deserts proponents emphasize the notion that punishment should be proportionate; that is, there should be a scale of punishments with the most serious being reserved for the most serious offences, and that penalties should be assessed according to the seriousness of the offence72. In this method of punishing, the offenders potential to commit future offenses does not come into consideration, but his or her previous convictions are taken into account because most proponents of just deserts support reductions in sentence for first offenders73. This also has led to adoption of sentencing guidelines.

6.1.4

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. Offenders 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.74 Rehabilitation is to ensure that the offender would be able to be re-absorbed into the society

V.A., Usoh: The Sociology of Punishment and Correction, B.F Okeshola, ed., Lagos, National open University of Nigeria, n.d, p. 119 72 C. Bank, supra, p.110 73 C. Banks, supra, 113 74 C.Banks, supra, p.116

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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. This is to make them useful to the society when they come out and ensure that they do not return to their old ways 75

In Nigeria, such functions are carried out by the government and non-governmental institutions as well. It is common knowledge that moat prisons have training centers where inmates learn various skills ranging from carpentry, tailoring, barbing etc. As a matter of fact, some prison yards have educational centres where intakes undergo instructions and write olevel examinations.

6.1.5

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 happening76. Through the incapacitative approach, offenders are placed in custody, usually for long periods of time, to protect the public from the chance of future offending77. Incapacity may also be present in other forms of punishment such as parole, in the sense that
O.O Adenike : Resocialization of Offenders', LLM Seminar Paper, Faculty of Law, University of Lagos, 2011 76 A. Kumari: Role of Theories of Punishment in the Policy of Sentencing, p.25 at http://ssrn.com/abstract=956234 (Accessed 20/2/12) 77 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 Mutallabs utterances showed that he would continue to be a threat to the security of the United State and hence his denial of parole.
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although the offender is free from incarceration, he or she is placed under supervision, which may restrict his or her opportunity to commit crime78.

6.1.6

RESTORATION

Restorative justice has been the dominant model of criminal justice throughout most of human history for all the worlds 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 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 practices79

6.2

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. 6.2.6 DEATH PENALTY:

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

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This is prescribed for capital offences. Capital offences include: murder80 , armed robbery81, treason82 and treachery,
83

. In the Northern part of the country, the following offences too

carry capital punishment i.e Adultery84, Rape85 (where the rapist is married), Sodomy86 (if married), Robbery87 (where death was caused from the crime), Intentional Homicide88 (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 lieu89. 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 well 90.The position seems to be different under the Shariah penal Code. The relevant age is that of a mukalaf91 which is not explicitly stated in the law. 6.2.7 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,
see 2.319(1), Criminal Code Act, CAP 38, LFN, 2004 see s.1(2)(b), Robbery and Firearms (Special Provisions) Act CAP. R11 LFN. 2004; 82 see s.37(1) , Criminal Code Act, supra; 83 see s.49A, criminal Code Act, supra
84 85 80

81

S.127(b) of Shariah Penal Code of Zamfara Ibid. S.129(b) 86 Ibid, S.131(b) 87 Ibid. S.153(c) 88 Ibis. S.200(a) 89 See 368(2) Criminal Procedure Law; section 270 Criminal Procedure Code; section 271 Criminal Procedure Code. 90 See 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 Governor 91 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.

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rehabilitation or incapacitation for recidivists. It ranges from few days to a life imprisonment depending on the gravity of the offence92. 6.2.8 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 well. 6.2.9 CORPORAL PUNISHMENT

This is the physical chastisement offenders. In Nigeria, canning93, haddi lashing94 or even the removal of wrist95 are provided in our criminal statutes. In the modern western world

corporal punishment is seriously out of fashion96. 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. 6.2.10 COMPENSATION Compensation is provided under various criminal laws 97. 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

See s. 377 CPA, s. 93 SPC, s. 380 CPC See section 387 Criminal Procedure Act and section 77 Penal Code. 94 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 pain 95 Applicable only under the Shariah Penal Code 96 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. 295-316 97 section 270 Criminal Procedure Act and section 365 Criminal Procedure Code, section 93 SPC
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sentence98. For unintentional homicide, the punishment is the payment of blood money as against life sentence in other laws 99. Where the offence of causing hurt is committed, the convict shall pay compensation in addition to any other corporal punishment that the judge may impose100.

f. Other punishments that are available include binding over101, conditional discharge102, probation orders103. Others include warning, boycott, reprimand, and public disclosure104.

7.0

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.

See section 200(b) of SPC See s.201 SPC 100 See s.219 SPC. In addition, where the offence is grievous bodily hurt, the convict would be required to pay diyyah 101 See sections 300 and 309, Criminal Procedure Act and section 25 Criminal Procedure Code 102 section 435 Criminal Procedure Act 103 section '436 Criminal Procedure Act 104 See generally section 93(1) of Sharia Penal Code
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There are no concrete sentencing guidelines backed by law105 and even if there was one, it not usually being followed by the courts106.

Plea bargaining is another concept that have been admitted into our criminal justice system107. In my opinion, the practice of this concept has eroded the average Nigerias 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 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.

Except in ACJL where the 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. 107 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
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