Años, Sectores de Eco Y Provincias
CONCLUSIONES Y RECOMENDACIONES
33 Commands, 1 FCT Command and a total of 240 Prisons facilities spread across the six geopolitical zones of the country.120
The prisons statistics as at 31st October 2014 revealed that Nigerian prisons‟
population stood at 57,121 out of which 39,577 were awaiting trial inmates while 17,544 were convicts.121 As at 31st October 2015 the population rose to 65,000 out of which 72%
(46,800) were awaiting trial inmates while 28% (18,200) were convicts.122 In October 2016 the prison population had increased to 69,000 out of which 49,680 were awaiting trial inmates while 19320 were convicts.123 What an unfortunate situation! Where rests the constitutional presumption of innocent until proven guilty? These and more will be discussed in detail at the appropriate chapter.
34 2.2.1 Retribution
Retribution could mean a punishment inflicted on someone as vengeance for a wrong or criminal conduct.125 According to Okonkwo and Nash, the first view in punishment involves a process of „looking back‟ at the circumstance of the crime committed, and deciding what the accused person deserved for his conduct having regard to his criminal responsibility.126 Section 401 (2) (f) of the Administration of Criminal Justice Act, 2015 provides that:
In determining a sentence, the court shall have the following objectives in mind, and may decide in each case the objectives that are more appropriate or even possible: (f) retribution that is the objective of giving the convict the punishment he deserved, and giving the society or the victim revenge.
Under the Jewish tradition, „an eye for an eye‟ governed the law of retribution.127 This school of thought holds the view that if an individual deliberately violates the existing legal
order, such an individual should get proportional punishment for his criminal behaviour.128 In modern time, imprisonment is seen as the most severe punishment for law breakers. According to this school of thought, „every bad behaviour should be punished by imprisonment‟.129 Scott argued that,
We often hear the argument of the „eye for an eye‟, yet such principles were developed as a means of ensuring that if a conflict existed between two Jewish tribes and lives were lost, the lex talionis was invoked to ensure that one tribe
125 M Gwinn et al (ed) Oxford Dictionaries ( UK: Oxford University Press,2015),
<www.oxforddictionaries.com> accessed on Thursday 26th November,2015.
126 CO Okonkwo et al, Criminal Law in Nigeria (2nd edn, Ibadan: Spectrum Books Ltd, 2012) p.28.
127 The Holy Bible, King James Version (Nashville, Tennessee: Holman Bible Publishers, 1979), Genesis 9:6, recorded that „whoever sheds the blood of man shall his blood be shed, for God made man in his image‟.
Exodus 21:2 records that, „whoever strikes a man so that he dies shall be put to death‟.
128 N Dewhurst, „A Critical Analysis of the Justification of Imprisonment as Punishment and the Culture of Punitiveness in Comparison to the Realties of Prison Life within England and Wales‟ Internet Journal of Criminology , <www.internetjournalofcriminology.com> accessed on Wednesday, 25th November 2015.
129 Ibid.
35 would not be destroyed. Contrary to current understandings, this did not mean
that a life was taken for life lost, but rather that a life was given from one tribe to another to ensure parity. The principle is not one of harm escalation or retribution, but one of the restorations of balance.130
The giving of the offender his just desert appears to be the outdated way of punishment. Since retribution means merited punishment, meting out of reward or punishment according to one deserts or something given in reward of;131 the question may be, what benefit or compensation does the victim of crime get when the offender is imprisoned?
This appears more worrisome when even if fine is ordered the offender pays to the government and where an offender is imprisoned, the victim of the crime takes care of him indirectly through payment of tax that would form part of what the government would use in the maintenance of prisons.
2.2.2 Deterrence
Another aim of imprisonment according to some scholars is deterrence. It is the thesis of this school of thought that imprisonment is made to reduce incidence of crime if it terrifies the majority of the public. It is the argued of this school of thought that once individuals are aware of the peril of prison and the stigmatisation that follows, those individuals will refrain from committing crime.132 The aim of deterrence as a form of punishment is to serve as a lesson to the individual offender and the public. There are two types of deterrence. They are the individual and the general deterrence.
Individual deterrence hoped to deter individual. It is hoped that the experience of punishment will be so unpleasant that the offender will not be likely to commit another offence. The assignment of the court in this regard is to look to the future and select the
130 D Scott, Penology (London: Sage Publications, 2008) p.26.
131 The New Webster’s Dictionary of the English Language (International edn, New York: Lexicon International Publishers, 1990) p.850.
132 N Dewhurst, „A Critical Analysis of the Justification of Imprisonment as Punishment and the Culture of Punitiveness in Comparison to the Realties of Prison Life within England and Wales‟ op cit.
36 sentence which is likely to have the most impact on the individual.133 Section 401 (2) (d) of the Administration of Criminal Justice Act, 2015 provides that:
In determining a sentence, the court shall have the following objectives in mind, and may decide in each case the objectives that are more appropriate or even possible: (d) deterrence, that is the objective of warning others not to commit offence by making an example of the convict.
Under the general deterrence, it is hoped that the threat of punishment will deter people from committing crime. At the legislative level, the law makers lay down penalties to threaten people who might contemplate committing crime. At the sentencing level, offenders are punished in order that others will be discouraged from committing crimes.134
The theory of deterrence rests on the assumption that the fear of sanction makes people to avoid committing crime. This is not always the case. Cavadino and Dignan, argued that, „it has been overlooked that majority of people obey the law most of the time out of moral considerations, rather than to avoid imprisonment‟.135 To argue that individuals are not capable of refraining from committing crime unless there is a threat of sanction is a conclusion based on a wrong premise.
2.2.3 Incapacitation
According to Lawton LJ in the case of Sargent136:
There are some offenders for whom neither deterrence nor rehabilitation works. They will go on committing crimes as long as they are able to do so. In those cases the only protection which the public has is that such persons be locked up for long period.
133 CMV Clarkson et al, Criminal Law Text and Materials (4th edn, London: Sweet & Maxwell, 1998) p.36.
134 Ibid.
135 M Cavadino et al, The Penal System: an Introduction (London: Sage Publications, 2007) p.37.
136 [1975] 60 Cr. App.R.74.
37 Incapacitation appears to be a protective sentencing aims at rendering the criminal incapable of committing more crime by incapacitating him. It is simply thought that if an offender is in prison, he cannot commit further crimes. In this way, the public will be protected. Section 401 (2) (b) of the Administration of Criminal Justice Act, 2015 provides that:
In determining a sentence, the court shall have the following objectives in mind, and may decide in each case the objectives that are more appropriate or even possible: (b) restraint, that is the objective of keeping the convict from committing more offence by isolating him from society.
Dewhust argued that incapacitation as justification for imprisonment is riddled with objections that collude to negate its usefulness.137 The first objection according to the author is that incapacitation simply does not prevent offenders from committing further crime.
Crimes can, and are committed by some people even when they are in prison. Hale supported the above argument when he noted that, „As a brief indicator of this, official statistics indicate that in 2010 in England and Wales, there are 14,356 assaults that occurred in prisons.‟138 By locking up of an offender, the society has not fully achieved her target because the cause of the anti-social behaviour of the offender has not been addressed. Secondly, incapacitation does not take into account that offenders carrying out their sentences in prison may likely come back more hardened criminals.
Under this head, imprisonment is regarded as a means of displacing offenders. It is submitted that the state should be more focused on how to tackle the reasons why offenders offended and how to ensure that as far as possible that upon their return to the society they are not only willing but are able to lead law-abiding and self-supporting life.
137N Dewhurst op cit, p16.
138 C Hale, et al, Criminology (Oxford: Oxford University Press, 2005) p.560.
38 2.2.4 Denunciation
Denunciation aims at showing the society‟s abhorrence to criminal behaviour. Through denunciation, it is hoped that the collective conscience of the society is addressed when an offender is sent to prison. The essence of this is to demonstrate that society hates crime.
According to Roberts and Hough, „denunciation aims to perpetuate the „deep-seated attachment to punishment as a response to wrongdoing‟ and therefore indicate that such behaviour will ultimately always result in punishment, the most severe being that of imprisonment.‟139 Denunciation is employed to demonstrate that the society condemns criminal act. Section 401 (2) (a) (e) of the Administration of Criminal Justice Act, 2015 provides that:
In determining a sentence, the court shall have the following objectives in mind, and may decide in each case the objectives that are more appropriate or even possible: (a) prevention, that is, the objective of persuading the convict to give up committing offence in future, because the consequences of crime is unpleasant; (e) education of the public that is the objective of making a clear distinction between good and bad conduct by punishing bad conduct.
2.2.5 Rehabilitation and Reformation
Rule 3 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), 2015 provides that,
Imprisonment and other measures which result in cutting off persons from the outside world are afflictive by the very fact of taking from these persons the right of self-determination by depriving them of their liberty. Therefore the prison system shall not except as incidental to justifiable separation or the maintenance of discipline, aggravate the suffering inherent in such a situation.
139 JV Roberts et al, „Changing Attitudes to Punishment: Public Opinion Crime and Justice‟, as cited by N Dewhurst, op cit.
39 In the same vein, rule 4(1) of the said Rules provides that,
The purpose of a sentence of imprisonment or a similar measure deprivative of a person‟s liberty is primarily to protect society against crime and to reduce recidivism. Those purposes can only be achieved if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.
Rule 4 (2) of the said Rules adds that, to achieve the above objective, the prison institution should utilise all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners.
In the United Kingdom, rule 3 of the Prisons Rules 1999 provides that „the purpose of the training and treatment of convicted prisoners shall be to encourage and assist them to lead a good and useful life‟.
Rehabilitation is concerned with the welfare of offenders in the present and future rather than inflicting pains for the past conducts. Its aim is to reform the offenders and make them better and law-abiding citizens. The rehabilitation aim of imprisonment should seek to minimise any differences between prison life and life at liberty.140 It seeks to investigate the cause of ant-social behaviour of the offender, cure the defect and reform him to become disciplined and law-abiding citizen in a free society. Section 401 (2) (c) of the Administration of Criminal Justice Act, 2015:
In determining a sentence, the court shall have the following objectives in mind, and may decide in each case the objectives that are more appropriate or
140 The United Nations Standard Minimum Rules for the Treatment of Offenders (the Mandela Rules), Rule 5.
40 even possible: (c) rehabilitation, that is, the objective of providing the convict
with treatment or training that will make him into a reformed citizen.
The physical aspect of imprisonment will only serve as a reminder that the original behaviour of the offender was wrong. The idea of rehabilitation is to repair harm rather than escalating it. In the present days, penal system advocates rehabilitation and reform as the justification for imprisonment. But how can rehabilitation work in an environment where prisoners are considered worthless, stigmatised and rejected by the society? Goffman argued that rehabilitation cannot work where the prisons beget a „series of abasements, degradations, humiliations and profanations of self‟.141 Nigerian penal system seems to operate on outdated and ineffective proposal. It is difficult to resist the temptation of describing our prisons system as „hells on earth‟. The reality is that too many persons are sent to prisons on an unjustifiable basis.142 It is submitted that prisons should be reserved only for offenders who present a serious threat to the society and those who resist non-custodial measures.