By Theodore Opara

The Lagos State Administration of Criminal Justice Law, ACJL, 2015, is currently experiencing some challenges in its implementation. While the State Judiciary appears to be making significant impact on the justice system with the ACJL especially in the area of prison decongestion, the state executive and legislative arm seem to be doing the opposite. Using innovative ideas and policies, such as non-custodian sentencing, probation and restorative justice system, the state judiciary has ensured that inmate population in prisons and other remand homes in the state is drastically reduced. This is also complemented by regular amnesty gestures extended to deserving inmates by the state chief judge. These efforts ordinarily ought to have translated to significant decongestion of the prisons but that is presently not the case as the prison population continues to rise at an alarming rate.

The root of this challenge is traceable to certain laws and agencies of the state government. For instance, the Lagos State Environmental Sanitation and Special Offences Task Force, arrests an average of 80 persons daily for various minor offences. Out of the number, over 60 per cent of those who are unable to pay stipulated fines are summarily sentenced and thrown into the prisons. The situation is made worst by the huge fines, those arrested are compelled by law to pay. For instance, a person arrested by the task force for the offence of street trading is expected to pay a fine of N90,000. Many, who the total worth of goods for which they were arrested for trading on the streets is not up to N10,000, who ordinarily, cannot afford such amount end up swelling the prison population. The task force which has also become a major revenue-generating agency of the state government, has also ensured that the prison is continually over-populated.
In this edition of Law and Human Rights, our guest writer, a Senior Legal Officer in Human Rights Law, HURILAWS, Collins Okeke, interrogates the non-custodian provisions of the Lagos State Administration of Criminal Justice Law, 2015 and proffers solutions on how these provisions can be made to tackle prison congestion.

By Collins Okeke

The Lagos State Administration of Criminal Justice Law (ACJL) 2015 was first passed in 2007 and reenacted in 2011 & 2015. One of the reasons for enactment of the Lagos ACJL was the overcrowded condition of Lagos prisons amongst other challenges. The expectation was that with the Lagos ACJL, the number of persons on awaiting trial and in prisons in Lagos will significantly reduce. Sadly, that has not been the case. The Lagos ACJL has been implemented for more than 10 years and there is no significant reduction in prison population in Lagos. A report released in 2017 by the Nigerian Bureau of Statistics indicates that Lagos State has the largest concentration of persons in prison in Nigeria. Anecdotal evidence suggests this may be as a result of a weak non-custodial legal framework.

Non-custodial sentencing

Non-custodial sentencing or measures refers to a sentence given to an offender that does not involve imprisonment. It is sometimes used interchangeably with the words non-custodial punishment. It is a sentence served outside the physical facility designated as a prison which is administered by the state or by any agency on behalf of the state. Examples of non-custodial sentences include: Community Service, probation, fines, curfews, parole orders, binding over etc. The United Nations Standard Minimum Rules for Non-Custodial measure (the Tokyo rules) encourages member- states to develop non-custodial measures within their legal system. In Nigeria, the Administration of Criminal Justice Act and Laws, the Penal and Criminal Procedure Laws and other Laws provide for some form of non-custodial measures.

Non-Custodian sentencing under the Lagos ACJL, 2015

The Lagos State ACJL 2015 makes provision for the following non-custodial measures or punishment – Fines, probation, community service, rehabilitation, deportation, cost, compensation and damages; seizure, restitution, forfeiture and disposition of property. We shall focus on fines, probation and community service.

Fines

A fine is a sum of money specified by law which an offender is required to pay to the authorities as the penalty for an offence committed by him. It is provided by Section 316 of the Lagos ACJL 2015. Section 316 (1) provides as follows:

“Subject to the other provisions of this section, where a court has authority under any written law to impose imprisonment for any offence and has no specific authority to impose a fine for that offence, the court may in its discretion, impose a fine in lieu of imprisonment.”

Sections 316 (2) & (3) Lagos ACJL 2015 gives judges and magistrates the discretion to determine what is appropriate fine in each circumstance. It also provides limits to the amount an offender will pay as fine. The advantages of fines are that it can serve as a huge source of revenue for the state. It is also easy to administer. The challenge with fine is that it can be excessive and misapplied as is sometimes the case in Lagos. For instance, the Lagos State Street Trading and Illegal Market Prohibition Law 2003,whichprohibits street trading and illegal markets, prescribes the following fines: N90,000 or six months imprisonment for a first offender; N135,000 and 9 months imprisonment for a second offender and N180,000 and one year imprisonment for a third offender. These fines are excessive and fail to take into consideration the nature and condition of offenders who are mostly poor. Although the Lagos State Street Trading and Illegal Market Prohibition Law prescribe other non-custodial measures like seizure and forfeiture; in practice, Lagos State sentencing policy appears to favour fines. The result is that most offenders cannot pay the fines and will end up in prison, further congesting the prisons.

Court issues warrant of arrest for ex-NIA DG, wife

Probation

Probation is another non-custodial measure provided for by the Lagos ACJL 2015. Probation is a pre-conviction order whereby a defendant is discharged or released from confinement on conditions and under court supervision. If the probationer violates a condition of probation, the court may revoke the probation and proceed to convict and sentence the probationer to imprisonment. Probation is provided for by 341 to 344 of the Lagos ACJL 2015. Section 341 (1) provides as follows:

Judicial symbol

“Where any person is charged before a court for a non-indictable offence and the court finds that the charge is proved but is of the opinion that having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of offence or to the extenuating circumstances under which the offence was committed, it is inexpedient to impose any punishment other than a normal punishment, or that it is expedient to release the offender on probation or for community service, the court shall without proceeding to conviction make an order either-

(a) Dismissing the charge; or

(b) Discharging the offender conditionally on his entering into recognizance, with or without sureties, to be of good behaviour for the period of one year and not exceeding three years.”

The conditions for probation are at the discretion of the court and may include abstinence from intoxicating liquor or any other matters as the court may, having regards to the circumstances of the case, consider necessary for preventing a repetition of the same offence or the commission of other offences.

At present, probation services under the Lagos ACJL 2015, is only available to juvenile offenders. The services are not available to adult offenders. There appears to be a reluctance to extend probation services to adults even when available evidence suggests probation would have been better employed to rehabilitate adult offenders than imprisonment. There is also the challenge of infrastructure and personnel. Lagos State with a population of over 15 million has only two Juvenile Courts, two Remand Homes and three approved schools, where children in conflict with the law or beyond parental control are counselled and taken care of by probation officers. The numbers of probation officers are inadequate; most probation officers are overworked and poorly paid giving room for corruption.

Community service

A community service order requires an offender to do unpaid work in the community as reparation for his offence. Failure to comply with the order, however, attracts the risk of imprisonment. Community Service is provided for under Section 347 of the Lagos ACJL 2015. Community service in this regard could be environmental sanitation, assisting in the care of children and the elderly in government approved homes or any type of service which in the opinion of the court, would have a beneficial and salutary effect on the character of the offender. Like probation, it is only available for juvenile offenders. None of such services is available for adult offenders. It is plagued by inadequate infrastructure and personnel.

Conclusion

There is a growing shift from Custodial to Non-Custodial sentencing. Experts around the world are developing new Non-Custodial measures and improving on existing ones. The Lagos State ACJL 2015 makes provision for Non-custodial punishment. The challenge is that what the Lagos ACJL 2015 provides does not go far enough to significantly reduce prison population in Lagos State. There is an urgent need to reform non-custodial provisions of the Lagos ACJL 2015. The Lagos State Chief Judge has introduced sentencing guidelines and trained magistrates on application of restorative justice. The Lagos House of Assembly should complement the judiciary by extending probation and community service in the ACJL 2015 to adult offenders. Fines prescribed in Lagos laws should be commensurate to the offence and offenders.