By HW Emmanuel J. Samaila
One of the commendable features of the Penal Code 2017 (as amended) and the Administration of Criminal Justice Law, 2017 (hereafter referred to as “the ACJL”) is the expansion of the list of alternative sentences and measures. Hitherto, the two excessively utilized sentences were imprisonment and payment of fine. However, the need to decongest the correctional centres and treat convicts according to the gravity of their crimes necessitated the addition of community service and suspended sentence as alternative punishment and measure in the administration of criminal justice. In this piece, the provision for the sentence of community service and the suspended sentence measure will be examined vis-a-vis a list of all the offences to which the duo may be applied.
Despite providing for the sentence of imprisonment or fine or both for some offences in the Penal Code (see Section 31(1), Section 457 of the ACJL also empowers the Court to sentence a convict to perform service to the community or suspend the sentence meted on him.
However, Section 457(3) ACJL made an exception to the kind of cases in which a convict may be sentenced to community service or to which the suspended sentence measure will be applied. These are:
a.) offences involving use of arms.
b.) offences involving use of offensive weapons.
c.) sexual offences.
d.) offences whose punishment exceeds imprisonment for a term of 3 years.
The offences the Police are allowed to prosecute without referring same to the Attorney General fall under this group. See Section 103(6) ACJL.
The Court is enjoined under section 457(4)(a)-(c) ACJL to take certain factors into consideration while contemplating the imposition of a suspended sentence and community service. These are:
a.) Reducing congestion in prison.
b.) Rehabilitating prisoners by making them to undertake productive work.
c.) Preventing convicts who commit simple offences from mixing with hardened criminals.
Sections 322 and 324 ACJL are of immense relevance, too. In fact, Section 322(2)(c) ACJL pointedly requires the Court to consider appropriate non-custodial sentence in lieu of imprisonment.
Considering the parameters stipulated under Section 457(3) ACJL, the following sections in the Penal Code contain offences which may be punished with community service or to which the suspended sentence measure may be applied:
55, 59, 63, 66 – 68, 70, 74, 75 – 77, 80 – 89, 91(c) & (d), 92 – 94, 96-118, 136 – 146, 147(a), 149, 151-155, 160, 163 – 166, 168, 169(4), 170, 173 – 176, 198, 180-181, 183(a), 200(b), 203(a), 206(2), 207(a), 211-212, 214, 319, 228, 231-236, 240-245, 255, 268, 269, 289(a), 305, 313, 333 – 336, 339-342, 356-359, 361-363, 367-369, 372-375, 377, 379-384, 386, 387, 391 – 393, 395.
It is noteworthy that Section 40 of the Penal Code provides that the Court may pass a sentence of Caning on any male offender in lieu of or in addition to any other punishment except for offences punishable with death. This punishment should be utilized by Courts in a bid to avoid a straightjacket approach to the imposition of either a term of imprisonment or fine or both as punishment for all offences.
It must also be underscored that the sentence of imprisonment is stipulated by Section 423(2)(k) ACJL as being expressly restricted to offenders who should be isolated from society and with whom other forms of punishment have failed or is likely to fail. In other words, to recidivists or those convicted for grievous offences.
Even though the sentence and measure of community service and suspended sentence look like a slap on the wrist for a convict, the essence of a trial is to ensure that the tripartite dimension of justice is not only done but be seen to be done. In the case of GODWIN JOSIAH v. THE STATE (1985) 1 NWLR (Part 11) page 125 at 141, Oputa, JSC (as he then was) stated thus:
Justice is not a one-way traffic. It is not for the appellant alone. Justice is not even a two-way traffic. It is really three-way traffic. Justice for the appellant, accused for the heinous crime of murder, justice for the victim, the murdered man, the ‘deceased’, whose blood is crying to heaven for vengeance and finally justice, for the society whose social norms and values have been desecrated and broken by the criminal act complained of.”
Non-pecuniary and non-custodial sentence and measure of community service and suspended sentence are means of doing justice to all the parties affected by a crime. Justice is done to the convict when he is given a fair trial and commensurately punished in accordance with the graveness of his offence. Justice is done to the society whose norms and values have been desecrated by the crime when the offender is tried, convicted and punished. Finally, justice to the victim is two-fold. While he is a part of the society that feels satisfied with the trial, conviction and punishment of the offender, provision is made for his personal grievance to be adequately assuaged. Under the ACJL, this takes the form of the award of compensation, damages, restitution or cost of action. Section 325 ACJL makes provision for the award of an adequate compensation to the victim. The Section should be read conjunctively with the provisions of Part XXX of the ACJL where the term “cost” was used interchangeably with the term “compensation”. PART XXX made provision for the payment of cost or compensation or damages or orders of restitution.
Any trial that results in the conviction of an offender without a corresponding and adequate award (of cost, compensation, damages or restitution) in favour of the victim is an act of injustice to victim.
HW Emmanuel J. Samaila, Esq. Upper Customary Court, Kaduna State. Email: samailaemanuelj@gmail.com