Prison decongestion: Sentencing guidelines to the rescue

Before now, there were many issues bordering on sentencing and discretion of judges, as well as criticism over lack of uniformity in the sentences passed by trial courts on offences of identical nature.

This result from a lack of specific and definite sentencing policy thus leaving the range to the idiosyncrasies of the judges.

It is obviously repugnant to one’s sense of justice that the judgment meted out to an offender should depend in large part on the personality of the particular judge, before whom the case happens to come for disposition.

Today, lack of uniformity in matters of sentencing has been a subject of dismay to innocent victims of crime and also to the criminal offenders. While one group sees it as judicial discretion, the other considers it as irrational sentencing practice.

According to Justice Lewis JSC in Udoye V. State, (1967) NMLR 197, every case must be considered upon its own facts and because one court has imposed a particular sentence for a certain offence it does not follow that all other courts must do so. That is why courts are given discretion when a maximum penalty only is prescribed.

The importance of sentencing in our criminal justice system and the current prison congestion recently brought together, to a virtual interactive session, the Attorney-General of the Federation (AGF) and Minister of Justice, Mr. Abubakar Malami (SAN); the Chief Judge (CJ) of Lagos State, Justice Kassim Alogba; FCT CJ, Justice I.U. Bello; and CJs of other states.

Also in attendance were the Director General, Nigerian Institute of Advanced Legal Studies (NIALS) Prof. Tawfiq Ladan; judges and magistrates in the FCT Judiciary and all other justice sector stakeholders.

At the interactive session, which was organised by the Federal Ministry of Justice on Monday August 17, 2020, the Presidential Committee on Correctional Service Reform and Decongestion attempted a review of the draft FCT Courts Sentencing Guidelines and Practice Directions, 2020.

The AGF, in his keynote address, said the term ‘Sentence’ or ‘Judgment’ may denote the action of a court of criminal jurisdiction formally declaring an accused the legal consequences of guilt to which he had confessed or of which he has been convicted.

“Generally, therefore, a sentence is the punishment inflicted upon a convict at the end of trial. A sentence is the pronouncement by the court, upon the accused after his conviction in criminal prosecution, imposing the punishment to be inflicted.

“The sentencing guideline is a veritable tool for assisting the court in the sentencing process,” he stated.

He said the objectives of the proposed consolidated Sentencing Guidelines are; (a) Set out the appropriate standards and guidelines for the sentencing process in offences against the state, person, public order, morality, homicide, property and corruption related offences, for the purpose of ensuring reasonable uniformity and fairness in sentencing.

He said others are; (b) Set out the requirements and procedure for imposing custodial and non-custodial sentences for the purpose of preventing abuse and ensuring reasonable uniformity and fairness in the imposition of sentences; and (c) Ensure that congestion in prisons is reduced to the barest minimum through the use of non-custodial sentences in line with Section 470(2)(c) of the Administration of Criminal Justice Act, 2015 (hereinafter referred to as ‘ACJA’) and section 2(1)(b) of the Nigerian Correctional Service (NCS) Act, 2019.

According to the AGF, “If judges must not exceed the term prescribed in the statute creating an offence or exceed the quantum prescribed in punishing the offender, there must be Sentencing Guidelines.

“For us to avoid disparity in sentencing from one judicial officer to the other, then there must be a uniform guideline. For us to deploy non-custodial measures appropriately, then there must be Sentencing Guidelines.”

Malami said the draft consolidated Sentencing Guidelines has taken into consideration all the factors enumerated under sections 311, 313, 316, 317 and 401 of the ACJA, 2015, especially the objectives of sentencing, including the principles of reformation and deterrence, the interest of the victim, the convict and the community; the appropriateness of noncustodial sentence or treatment in lieu of imprisonment; and previous conviction of the convict.

Justice Bello, CJ FCT and ChairmanPresidentialCommittee on Correctional Service Reform and Decongestion, listed some remarkable achievements of the committee to include the speedy passage of the Nigerian Correctional Services Bill by the National Assembly and the subsequent signing into law of the NCS Act, 2019 by President Muhammadu Buhari on August 14, 2019.

According to him, the introduction of non-custodial sentences, such as probation, community service, restitution, compensation and suspended sentence by the Administration of Criminal Justice Act, 2015, was one of the main innovations of the new act which was aimed at addressing the problem of congestion of correctional facilities in Nigeria.

Lagos State CJ, Justice Alogba, also shared his experience on the Administration of Justice and non-custodial procedure in his state, saying it was not possible to have an all-encompassing provision in any human affair.

According to him, each judge will apply practice and direction to individual cases. “Unlike fines, how do you enforce physical communal service?” he asked.

Alogba also said the change of name from Nigerian Prison Service to Nigerian Correctional Services has shown the way to go. He mentioned compensating victims and rehabilitating offenders as some of the progress made by the state judiciary, adding that uniformity is what is sought to be achieved by unifying guidelines.

He noted that there was need for provision of the necessary infrastructure to drive noncustodial sentences, just as there was need for other government agencies such as the welfare agencies to assist.

Barr Esa Onoja on his part said a public officer who converts N2 billion and creates a scholarship fund, builds a church or mosque is helpful to society. In accordance with the current guidelines it would be fair for him to merit custodial sentence.

According to Onoja, the Sentencing Guidelines should not be shy in stating that the starting point for sentencing in corruption cases is the gravity of the offence.