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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

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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

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2008 For instance in the field of criminology. I shall consider the concept of crime and punishment from varieties of background. In other to discourage people from engaging in such acts. different schools abound on the theory on crime. In this paper.0 INTRODUCTION Crime and punishment are two concepts that are vital to the harmony and peaceful coexistence of a state. It is a multi-disciplinary concept 2. 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. The word crime has variety of meanings depending from the angle it is being approached.the principle of Pleasure and pain which should form the background for crime and punishment. crime is a result of individual biological disorder 2 1 3 . The classical school is led by Cesare Beccaria and Jeremy Bentham. certain specified punishments are attached to such conducts. Hence. The reason is not farfetched. They developed the Hedonic principle. An attempt shall be made to examine the historical perspective of crimes. The word µcrime¶ like many other concepts has defied an acceptable and all encompassing definition. Okeshola : Patterns and Trends of Crime in Nigeria. Lagos. every community of man has always put in place rules and norms that regulate the interaction of the inhabitants. ³indictment´.. National Open university of Nigeria. Such actions are usually collectively known by the people of every society. Certain conducts in the society that threatens the societal goals are collectively frowned at. What is a crime is a very difficult question to proffer an answer. 2. In securing this. Cesare Lombroso led the biological theory of crime.0 THE DEFINITION OF CRIME The word crime has its origin in the latin word crimen meaning ³accusation´. ³charge´ or ³fault´1.1. various categories and elements of crimes and of course theoretical basis of punishment and punishment as enshrined under Nigerian laws shall be highlighted. The goal of every society is that every inhabitant should pursue his interest and aspirations without fear or hindrance from another co-inhabitant. What a crime is to a F.

It is anti-social behaviour6. Lagos. Crime. Yet. Acts that constitute a crime in one society may not be a crime in another society. p. say or do. 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.3 Even in the same society. H Johnson. This approach to the study of crime is very useful as it takes into account all anti-social behaviours as crime. Crime is antisocial behaviour that is injurious to those social interests which rules of behaviour (including legal codes) are designed to support. an act that constitutes a crime at particular time may be dropped at another point in time. it would be apt to consider what crime means to different classes of people. Okeshola: Patterns and Trends of Crime in Nigeria. it is a holistic approach towards the study of crime and and this should be consider is punishment as well. it is treatment that offenders need and not punishment (as in pain). theologians may not agree with both of them. 2010 3 For instance.7 Hence. National Open University of Nigeria. Lagos. Hence.13 4 . According to the sociologists. National open University of Nigeria. under given circumstances. 5 The instances are endless. In other words. 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. 4 What is a crime to a person might not constitute a crime if committed by another person. in the Northern part of the country.sociologist may not necessary accord with a lawyer¶s view of crime. A detail account of these theories is offered by: K. U. The Dorsey Press. Correction and Society. Omoyibo: Contemporary Issues in Criminology and Security Studies. crime is seen as a behaviour that violates the norms of the society. 2008 7 E. Adultery is an offence while in the southern part it does not constitutes an offence 4 For instance in Lagos State. 6 F. A norm is any standard or rule regarding what human beings should or should not think. 1968. Therefore. the sociologists are more concerned with the totality of conducts that offends the collective conscience of the society. Homewood.

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. and stealing to mention but few. that when we say an act or omission is a crime. committed without defence or excuse. 1983. In this sense. For instance. the society would better achieve its aim of a balanced and just society where the totality of anti-social behaviours is taken care of8. 96 10 10 G williiams: Textbook of Criminal Law. This is apparent in heterogeneous societies. According to Tappan µcrime is an intentional act in violation of the criminal law (Statutory and case law). 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. 27 11 One demerit of the legal approach to crime is the over criminalisation of conducts. Tappan: µWho is the Criminal?¶ in American Sociological Review (1964:32) p. 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 5 . and penalized by the state as a felony or misdemeanour¶9. a crime which is also regarded as sin is any act against the commandment of God. London. Glanville Williams using crime interchangeably with offence defined it as ³a legal wrong that can be followed by criminal proceedings which may result in punishment¶10 It is in this sense that lawyers approach the concept of crime. one there is no doubt that it will be an herculean task to try bring out the norm in the society. Some anti-social behaviour may well constitute sin or crime in the theological sense like murder. It could be seen in some respect as a hybrid of both the sociologist and legal conception of crime.11 To the theologians.criminalization of conducts. rape. Stephens and sons. Again. Perhaps. What is acceptable to the Hasua/Fulani may not be shared by the Christian co-inhabitants 9 P. p. 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 8 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. 2nd ed. in the Northern part of the country where we have indigenous Hasua/Fulani and Christians.. at least in our country Nigeria. It must be noted however. it is the legal sense of a crime that we are referring to.

Infact. Historically. London. 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. 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. Robert Appleton Company. Fagbemi (1961) 1 All NLR 400 and Udokwu v. Omoyibo: Contemporary Issues in Criminology and Security Studies. p. it is on record that the first crime was committed by satan (devil) 15. Sweet & Maxwell. 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. crime has always been regarded as a civil wrong. all the Angels prostrated except Satan and there and then He was cursed.compensation and costs12.19 See section 2 of Criminal Code Act. p. National Open University of Nigeria. 1. See S. 1980. Aoko v. The concept of crime and criminal law has been traced to the emergence of the modern state or monarchy17. Eventually. New York. 3. cap. See for instance Quran 2 verse 24 16 S. Private revenge remained as the only option available to crime committed against individuals. 3(1) of the Penal Code Law.16 13 12 6 . other accounts had it that the first crime was committed by Adam and Eve. 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 law14.1911 17 K. 2010. Harent: µOriginal Sin¶ in The Catholic Encyclopedia. then the case of abel and cain follows 16. the king representing the state realized that C.A Naish: Criminal Law in Nigeria. Lagos. U. C38 Laws of the Federation of Nigeria 2004. It is believed that when Allah (God) created Adam and He asked all the Angels to prostrate to him. Even then crimes were confined to acts committed against the king.0 HISTORICAL PERSPECTIVE ON CRIME AND CRIMINAL LAW Crime predates man and any given society. Onugha (1963) 7 ENLR P. of Northern Region. Justice during this early period is only retributive. 14 The Constitution of the Federal Republic of Nigeria 1999 has provided for the definition of crime in its section 36 (12).O Okonkwo and M. 13 Therefore. Individuals that were wrong can only seek justice from the offender himself or his family. 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. Statutorily. Although.

Lagos. McGraw-Hill Inc. establishing fines. codifying laws. 20 D. A later king.34 23 ibid 19 18 7 . Harcourt Brace College Publishers. 7th ed. there was in existence. µthe first civilizations had codes of law. containing both civil and penal rules mixed together. before the advent of the colonial masters. creating a formal system of prescribed penalties for specific cases in 57 articles. Consequently. The first known written codes were produced by the Sumerians. New York. It was called the Code of Ur-Nammu¶20. some systems of customary criminal law which regulated the standard of behaviour of the People22.O Edewor: Theory Of Crime And Crime Control. In the southern part of the S.D Edelstein and R.the peace of the community was at stake and decreed that the act of wrongdoing to an individual should be reported to the king. 2010 21 E. Reids: Crime and Criminology. though these codes were not always recorded. 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.J Wicks: An Introduction to criminal Justice. Ibidapo-Obe: A Synthesis of African Law.4 Ibid. p. Being customary law.T. p. Orlando. 1977. Ur-Nammu left the earliest code that has been discovered. the state by way of the king¶s authority assumed the administration of justice by defining crimes. Anyone who injured one of the king¶s subjects was considered to have injured the king18.41 22 A. p. and it is known that Urukagina had an early code that does not survive. Concept publications Limited. 1994. National Open University of Nigeria. the conducts that constitute crime though unwritten were generally recognised as such among the members of the each community23. According to Edewor. and implementing the court system19. 2005.. In Nigeria.

Spectrum law publishing. That section of the constitution reads ³No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law´. we have a duality or multiplicity of criminal laws in the country. p. supra. Ibidapo-Obe. The constitution divided powers between the organs of government28. A. Hence. All other laws derive their validity from the constitution. Lord Lugard. p. Hence. At last. pp 97-125. see: A.43 26 Ibid. 24 The country was invaded sometime around 1861 and the conquistadors imported the imperial laws into the country. It is the most important law as it is supreme over all persons and authorities in the country. 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 North26.44 27 See section 22 (10) of the repealed 1960 Constitution. Crime and Punishment is a matter that is neither on the exclusive nor legislative lists. IbidapoObe: A Synthesis of African Law. the Obas are the custodians of the laws while in the North.country. 24 For a detail exposition of administration of justice under customary law and related issues. Any matter outside these two lists is a residual matter and both the Federal and State governments can legislate on it. 1993 25 A. The provision has been retained in all the subsequent constitutions including the 1999 Constitution (as amended) 28 See the first schedule to the constitution. crimes and punishments are governed by the following legislations: 4.G Karibi-Whyte: History and Sources of Nigerian criminal law. 4.2 The 1999 Constitution of the Federal Republic of Nigeria The constitution is the grund norm in the country.0 APPLICABLE LAWS In Nigeria. In 1904. Ibadan. 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). supra. In 1958. the Emirs have courts in their palaces where cases of breach of customary norms are dealt with. 8 . The customary and Shariah system were operating alongside the Lugard Criminal code25. customary criminal law was eventually abrogated by the Independence Constitution27. 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.

4. Niger. Qisas and tazir offences 33 as well as other general offences. 2000. Sokoto. The state has the responsibility to allow and encourage 29 AG LAGOS v AG Federation and Ors [2003] 12 NWLR (PT. 2000 33 Hudud are offences that carry fixed punishment.15(5)(a) 30 See C. 5.9 31 The states are: Zamfara. and Gombe 32 See for instance. The National Drug Law Enforcement Agency Act 35 and Customs and Excise Management Act36. Kaduna.it is within the legislative competence of both the Federal and State governments to legislate on it within their territorial limits 29. the Penal Code has been in existence right from independence as the Northerners had rejected the µEnglish¶ style of criminal law. 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.0 5. there will be nothing to be referred to as a society. p. Some other offences are covered in different statutes apart from the basic criminal/penal code. The validity of the Act was affirmed by the court after examining a number of provisions of the constitution particularly s. In the northern part of the country. Bauch.1 PURPOSE. Without this. Kebbi. 833) 1. supra. Shariah penal Code of Zamfara State.A Naish. Yobe. ELEMENT AND CLASSIFICATION OF CRIME PURPOSE OF CRIMINAL LAW It is the duty of every society to protect its internal harmony. Kano.O Okonkwo and M.3 STATUTES Crime is a residual matter for the states and of course Federal Government (for the FCT) can legislate on. some northern states31 adopted the Shariah Penal Code32. we have the Criminal Code which is applicable generally in the southern part of the country. They contain the hudud. LFN 2004 9 . Some offences covered by this law are faith-based. LFN 2004 36 CAP C45. The penal Code was styled to follow the Code of Sudan which itself was borrowed from the Indian Penal Code30.1 2004 35 CAP N30. In 2000. In Nigeria. Qisas are offences that carry Retaliatory punishment and ta'azir are penal/exemplary punishments 34 Act No. Borno. Jigawa. These statutes include: the Economic and Financial Crimes Commission (Establishment) Act34. law no.772) 222 wherein the apex court was asked to pronounce on the validity of the Federal Government¶s enactment of the Corrupt Practices and Other Related Offences Act.

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). Example includes gambling38. (n. persons whose conduct indicate that they are disposed to commit offences T. These types of conducts are referred to as mala prohibita. So. Adegoke : TRADITIONAL AND INFORMAL MECHANISMS OF CRIME CONTROL. Examples include murder. the states through its machineries usually legislate against such conducts..2 37 10 . Some of the objectives identified in the law are40: a. For the first time in Nigeria. a criminal statute39 has clearly spelt out the objects of criminal law.its citizens to pursue and maximise their interests in every endeavour while little or no harm is done to others. Law no. 11. In other to achieve this. Forstering collective obligation and duty towards the preservation and protection of life and property including public property c. They are universally recognised as such and are outlawed everywhere. Forbidding and dealing with conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interest d. theft and rape. 2011 40 Ibid. Safeguarding conduct that is without fault from condemnation as criminal e. National Open University of Nigeria.d) 38 ibid 39 Criminal Law of Lagos State. S. So. 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. Subjecting to public control. Promotion of an orderly society b.A Oduwole and N. 37 Other conducts though not inherently bad but may be counterproductive and eventually threatens the peaceful co-existence in the state.

women¶s chastity by criminalising false charge of adultery against women. any act that tends to jeopardise the following five things constitute serious offence. But because Islamic law cannot be divorced from the religion of Islam.2 Essential element of an offence has been defined to mean an element without which the offence cannot be sustained in law.S Ali: An Introduction to Islamic Criminal Justice: A Teaching and Learning Manual. 85 Paras C-D 44 E.a guilty mind. and mens rea(mental element). advantage. National open University of Nigeria. It is also possible for an act to be part of the actus reus of different offence. I. Sada. pp. injury. al have summed up the basic these basic objectives as follows: µLike other criminal justice systems.Ibidapo-Obe and A. State (1993) 7 NWLR (Pt. Thus in addition to protecting lives and property through criminalising murder and theft. 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. 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. the Shariah Penal Codes in the Northern part of the country are based on five basic objectives 41. Honour. the physical element and the mental element. See Onogoruwa v. In the accusatorial criminal system applicable in Nigeria. the Islamic criminal justice system specifically seeks to protect for Muslims their faith by prohibiting apostasy.N. 5.. UK Centre for Legal Education. loss for the subjects.2 ELEMENTS OF CRIME It suffices to say that crime and offence have been customarily agreed to mean the same thing. See: M. Similarly. Bello eds. 15-16 43 41 11 . They are Faith. welfare. and persons¶ sensory faculty by criminalising drinking intoxicants¶. 303) 49 at p. that is to say. Lagos. and S. Every offence has two basic elements. 2008. The objectives of criminalising certain conducts in Shariah are also aimed at the attainment of good.Apart from this. Property. It is generally agreed among Islamic jurists that the Shariah has been handed down basically to protect the five basic objectives. A. benefits and warding off evil. the system has a unique approach towards achieving this objective. p. Hence. except strict liability offences which are complete upon the manifestation of the physical element only44. 2008. the prosecution must prove all the elements of an offence for which an accused person is standing trial43. the system seeks to protect persons¶ family/honour by criminalising sexual intercourse outside marriage. These objectives are called µMaq sid ash-Shar ¶ah¶ 42 Mamman Lawan et. Lawan. Essien: Introduction to Nigerian Criminal Law. Life. and Intellect42. Actus reus consists of all the elements of the offence other than the state of mind of the accused person. the Islamic criminal justice system has as an overall objective the building of an orderly society.

. while some are strict liability. It refers to the state of mind of the person committing a crime. supra.Essien. The effect of the act does not matter47. failure to act may constitute an actus reus49.5(1) of the Criminal Code law of Lagos State. 134. 16-20. Criminal Code Act. We have felonies. 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 46.15 48 For instance Murder. Bature V The State (1991) 5 NWLR (PT. the mere doing of that act constitute a crime. 50 E. An actus reus could come in different form. 3. For action crime.the accused act must caused death 49 R v. 194) 697 47 See E. 52 Ibid. p. supra as well as Criminal Code laws of various states.a man and a woman were living together with the man¶s daughter. Pearson Education Limited. misdemeanours and simple offences 51. In the southern part of the country where the Criminal Codes are applicable. Essien.3 CLASSIFICATION OF CRIMES There are various categories of offences according to the statutes. The classification has been based on the severity of the punishment applicable to an offence. 51 S.. Criminal Law. p. 5th ed. It is contained in s.depending on the consequence of such an act 45. pp. 2004. The State (1977) NSCC 37. reckless or negligent depending on what the statute requires 50. London. 5. offences have been classified into 3. It should be added that some offences require guilty knowledge. supra. Some actus reus are result oriented. A felony is any offence which is declared by law to be a felony. or is punishable without proof of previous conviction. 45 46 12 . C. The second component of an offence is the mens rea.App. with death or with imprisonment for three years or more52. In some cases. supra which is now slightly different from others.Gibbins and Proctor (1918) 13 Cr. Elliot and F Quinn. This means that the actions alone do not constitute the offence but rather the resultant effect 48.8 See Williams V. They failed to give the child food and she subsequently died. the conduct of the accused person must have been intentional. To constitute a mens rea.

Manslaughter. Peters: Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century.Examples include Murder.1. 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. the Ottoman Government was indicted for crime against humanity by the Allied powers in 1915 after the First World War. Stealing. Examples include obstructing officer of courts of justice. Qisas and Ta¶zir54. 1998. p. keeping a brothel. Treason. fine etc. As a matter of fact. fornication (100 lashes). New York. being a member of an unlawful society etc. The punishment for these offenses depends on the discretion of the judge56. Hudud are offences that have penalties prescribed in fixed term in the Quran or the Sunnah55. fouling water etc. but less than three years53. forgery. However. This may include imprisonment (short time). Indianapolis. 54 53 13 . Tazir are the lesser offences. American Trust Publications. All offences other than felonies and misdemeanours are simple offences. or is punishable by imprisonment for not less than six months. Armed Robbery. On the other hand. In the Northern part of the country. theft (amputation). S. They are the most serious offences. the concept of crime was a nation-based concept and it was never taken as a serious matter at the international sphere57. A misdemeanor is any offence which is declared by law to be a misdemeanour. there are some penal code offences incorporated into the Shariah penal code which are not classified under Hudud Qisas or Tazir 55 M. Examples include murder (death penalty). Although. Cambridge University press. lashes (usually not more than 10 strokes). 2005. 5. the offences in the Shariah Penal Codes are broadly classified into Hudud. p. adultery (death penalty). 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. Rape. consumption of alcohol (80 lashes) and defamation (80 lashes).4 CRIME IN THE INTERNATIONAL SPHERE Prior to the second world. individuals were Ibid. there is no classification in the penal code. El-Awa: Punishment in Islamic Law.65 57 Although.

L. The sentence passed is the punishment that accused person is to serve or the reward for committing the offence. 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. 61 Some of those who have been tried for war crime include: 59 58 14 . but today. (adopted July 17. 6. Since individuals are the subjects of crime. 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. war crimes and crimes against humanity.M. In this respect. 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. 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. 999 (1998) 60 Ibid. 37 I. Punishment is a word that is used in so many ways.not subject of international law. Initially. within families or other institutions. It is a concept that is used in schools. the next step is for the judge or magistrate to pass sentence on him/her.crime against peace. 1998). it means therefore that there is no legal framework that could hold individuals responsible for criminal acts at the international arena. once an accused person has been found guilty of an offence. an International Military Tribunal (the Nuremberg Trial) was established58 to try war crimes committed by the European Axis Powers.0 THEORIES OF PUNISHMENT In Nigeria¶s criminal justice system.

Criminal Justice Ethics: Theory and Practice. and criminologists. e. p. London.105 15 . two main types of theories of punishment dominate: utilitarian theory and retributive theory.1. it will be apt to briefly discuss the theories of punishment as professed by moral philosophers. it must not be the natural consequence of an action. 2009. b. It must be the work of personal agencies. P. Inc. and more recently. Punishment. rehabilitation.. in the sense of a sanction imposed for a criminal offence.104 Ibid. It must involve an unpleasantness to the victim. actual or supposed. consists of five elements: a. Sage Publications. retribution. c. incapacitation.whereby violators of criminal law are condemned and sanctioned in accordance with specified legal categories and procedures 62. These philosophical theories have in turn generated further theoretical discussions about punishment concerned with deterrence. It must be of an offender. 6. Banks. in other words. restorative justice63. It must be for an offence. In the philosophical debate about punishment. 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.1 DETERRENCE: 62 63 C. social theorists. d. actual or supposed.

35 65 Banks.. LLM Seminar Paper. It may deter others who might be tempted to try crime«Such sentence may also deter the particular criminal from committing a crime again or induce him to turn from criminal to honest living 68 C. therefore.People are deterred from actions when they refrain from carrying them out because they have an aversion to the possible consequences of those actions64. Sweet & Maxwell. 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. If the apparent magnitude be greater than the magnitude of the pleasure expected he will be absolutely prevented from performing it 67. it simply adds to the totality of human suffering65. In other words. unless punishment deters further crime.M. Two classes of deterrence have been identified. 3rd ed. To utilitarian philosophers like Bentham. general deterrence involves dissuading potential offenders from offending at all by way of the punishment administered for a particular offense.M Keating: Criminal Law: Text and Materials. There is individual and general deterrence. Federal Republic of Nigeria as follows: A proper sentence posed in public serves the public in two ways. 2011. Faculty of Law. London. supra 66 A.A Iroko: µTheory of Deterrence¶. In this view. utilitarians justify punishment by referring to its beneficial effects or consequences. p. µHistory of Deterrent¶. 2011 67 ibid 68 (2002) FWLR (pt 105) 896 at 937 64 16 . 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. This is better captured by the Court of Appeal in Ejunjobi v. LLM Seminar Paper. 1994. 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. Individual deterrence involves deterring someone who has already offended from reoffending. University of Lagos. Faculty of Law.O Bakare. D. University of Lagos.V Clarkson and H.

43. supra. calling for ³an eye for an eye. C. and a life for a life´. see: D.S.1. Vol.com/abstract=1573600. Gray: µPunishment as Suffering¶. Banks. 116-117 17 . For example. a sadistic murderer may horribly torture his or her victim. 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. Vol. 63.1. certain forms of punishment are considered too cruel to be defended as valid and appropriate. but society would condemn the imposition of that same form of punishment on the offender. VANDERBILT LAW REVIEW.6.2 RETRIBUTION Retribution is the theory that punishment is justified because it is deserved. 4 (Autumn. 2010also available at http://ssrn. Buccafusco and J. Masur: µ Retribution and the Experience of Punishment¶. vol. it should nevertheless be abolished as part of ³the civilizing mission of modern states 6. It can also be said that although the death penalty may constitute a just punishment according to the rule of lex talionis. 1980). 230-234. Frymer-Kensky: µTit for Tat: The Principle of Equal Retribution in Near Eastern and Biblical Law¶ The Biblical Archaeologist. Systems of retribution for crime have long existed. For other accounts on retribution as a theory of punishment. 98 no. But behavioural scientists pointed out that no 69 T.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. 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. California Law Review. 2010 70 C. J. Bronsteen. pp. with the best known being the lex talionis of Biblical times. Banks has argued that this is a crude formula because there are many crimes to which it cannot be applied70.5. a tooth for a tooth. No. pp.

113 74 C. 119 72 C. p.d. 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. 6. In essence. Just deserts proponents emphasize the notion that punishment should be proportionate. Bank.´74 Rehabilitation is to ensure that the offender would be able to be re-absorbed into the society V. intelligence.110 73 C. B. p. Usoh: The Sociology of Punishment and Correction. n.two offenders who commit the same crime are completely alike in motivation.A. there should be a scale of punishments with the most serious being reserved for the most serious offences. supra.F Okeshola. Prominent among the proponents is Von Hirsch. supra. but his or her previous convictions are taken into account because most proponents of just deserts support reductions in sentence for first offenders73. In this method of punishing. a new thought emerged especially in the United State which advocated for just desert as a form of punishment.. ed. Banks. This also has led to adoption of sentencing guidelines.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.116 71 18 . the offender¶s potential to commit future offenses does not come into consideration.. that is.Banks. Lagos. In the early 70s. and that penalties should be assessed according to the seriousness of the offence72. p. and potential for rehabilitation71. supra. National open University of Nigeria. personality.1. Offender¶s liability ought to go with a corresponding right on his or her part to ³return to society with a better chance of being a useful citizen and staying out of prison.

LLM Seminar Paper. the popular µunderwear bomber¶ by the US Court is illustrative on this. such functions are carried out by the government and non-governmental institutions as well. some prison yards have educational centres where intakes undergo instructions and write o¶level examinations. It is common knowledge that moat prisons have training centers where inmates learn various skills ranging from carpentry.O Adenike : µResocialization of Offenders'. Incapacity may also be present in other forms of punishment such as parole. In other words.once he finishes his jail term. 2011 76 A. 6. Through the incapacitative approach. the need to be law abiding citizens and at the same time develop their potentials. Kumari: µRole of Theories of Punishment in the Policy of Sentencing¶.1.25 at http://ssrn. tailoring. University of Lagos. to protect the public from the chance of future offending77. 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. usually for long periods of time.com/abstract=956234 (Accessed 20/2/12) 77 The recent sentence passed on Umar Farouk Mutallab. 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. in the sense that O. 75 19 . Faculty of Law. the state has obligation to make arrangement in prison to enable the offender fits back into the society. The court is of the opinion that Mutallab¶s utterances showed that he would continue to be a threat to the security of the United State and hence his denial of parole. As a matter of fact. The idea is to employ the period of incarceration to impact on the offenders. offenders are placed in custody. barbing etc.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. p.

although the offender is free from incarceration. According to Ilori. It is grounded in traditions from ancient Greek. 6. it is pertinent to consider the punishments provided in our criminal laws to determine to what extent they reflect the various theories examined. who was just released from Uk prison and allowed to constinue to stay at home but with no access to phone.1. he or she is placed under supervision. on a will to return to local decision-making and community building. University of Lagos. build respect for diversity and promote responsible community practices79 6. internet or other communication devices.O Ilori: µCriminal Arbitration¶ LLM Seminar Paper. and Confucian traditions.. 2011 78 20 . These approaches are also seen as means to encourage the peaceful expression of conflict. It is also ordered that he carry an electronic intelligence device so as to monitor his activities..6 RESTORATION Restorative justice has been the dominant model of criminal justice throughout most of human history for all the world¶s peoples. to promote tolerance and inclusiveness. Faculty of Law. and Roman civilizations and in Hindu.2 PUNISHMENT UNDER NIGERIAN LAW Having considered the various theoretical approaches to punishments.6 DEATH PENALTY: The case of . 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. Buddhist.2. 79 O. Restorative justice means restoring victims as well as offenders and the community in addition to restoring lost property or personal injury. which may restrict his or her opportunity to commit crime78. Arab. 6.

153(c) 88 Ibis. 90 See Modupe Johnson v. Intentional Homicide88 (where the relatives of the victim do not opt for payment of blood money ± ad-diyyah). Criminal Code Act. section 270 Criminal Procedure Code. However. S. At best. State (1988) 4 NWLR 130 (Pt.37(1) . 21 . 83 see s. Robbery87 (where death was caused from the crime).48 defines a mukallaf as a person possessed of full legal and religious capacity. S. Under the Criminal procedure Act and the Criminal Procedure Code. 82 see s. 2004.This is prescribed for capital offences.129(b) 86 Ibid. see 2.319(1). supra 84 85 80 81 S. armed robbery81. supra. 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. This in my opinion could range between the age of 9 and 12. section 271 Criminal Procedure Code. LFN.1(2)(b). what could happen is that the woman would be allowed to deliver before the execution is carried out. 83 . 6.127(b) of Shariah Penal Code of Zamfara Ibid. Rape85 (where the rapist is married). R11 LFN. criminal Code Act. In the Northern part of the country. Criminal Code Act.7 IMPRISONMENT Imprisonment has been provided as a form of punishment under all the criminal statutes in Nigeria.200(a) 89 See 368(2) Criminal Procedure Law. S. a pregnant woman is not to be sentenced to death but may be given a life imprisonment in lieu89. the following offences too carry capital punishment i. The relevant age is that of a mukalaf91 which is not explicitly stated in the law. Sodomy86 (if married). It could be said that this is perfect example of the retribution. Capital offences include: murder80 .2.131(b) 87 Ibid. S. It could be said that imprisonment could serve as a means of deterrence. Robbery and Firearms (Special Provisions) Act CAP. treason82 and treachery. 2004 see s. The Court shall however in this circumstance detain such young person at the pleasure of the President or Governor 91 Ibid. CAP 38. S.The position seems to be different under the Shariah penal Code.49A.87).e Adultery84. it is doubtful if this position is applicable under the Shariah Penal Codes.

the relatives of the victim is given an option of demanding compensation instead of death See s. canning93. 93 SPC. It could also be imposed in lieu of imprisonment as well. 3 (Sep.307 (1) of the Criminal Procedure Code. This is a reflection of the restorative theory justice. Vol. s. 295-316 97 section 270 Criminal Procedure Act and section 365 Criminal Procedure Code. 377 CPA.2.2. 2003). It was abolished for judicial purposes in England and Wales in 1948. 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. Fine could serve as an individual deterrence or just desert. In the modern western world corporal punishment is seriously out of fashion96.. It is usually imposed together with or as alternative to imprisonment. In Nigeria.10 COMPENSATION Compensation is provided under various criminal laws 97. 380 CPC See section 387 Criminal Procedure Act and section 77 Penal Code. 6. Scarre: µCorporal Punishment¶ in Ethical Theory and Moral Practice. No. 6. 6. Whenever he gazes at the hand.rehabilitation or incapacitation for recidivists. It ranges from few days to a life imprisonment depending on the gravity of the offence92. 94 See s. 6. It is more exhibited in the SPC where especially in homicide cases.8 FINES Fine is an integral part of our punishment in Nigeria. Removal of wrist especially in the SPC as well is meant to deter and incapacitate the offender. See G. he would always remember the offence. section 93 SPC 93 92 22 . s. These punishments are rooted in deterrence and incapacitation theories.2. haddi lashing94 or even the removal of wrist95 are provided in our criminal statutes. the second wrist is removed and surely such a person may not be able to commit a crime of theft again. 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.9 CORPORAL PUNISHMENT This is the physical chastisement offenders. Where he is caught the second time. pp.

adultery. See section 200(b) of SPC See s. f.0 SUMMARY / CONCLUSION Legislating against crimes and award of punishments are two necessary ingredient of a peaceful society. In addition. The punishments are also stipulated.201 SPC 100 See s. boycott. An examination of our penal laws clearly showed the diversity of the Nigerian society. This is why actions like sodomy. It is observed that punishments are arbitrarily passed in our courts. where the offence is grievous bodily hurt. conditional discharge102. what constitute a crime has been well spelt out in our various criminal. penal and Shariah codes. probation orders103. In the areas of punishment. the punishment is the payment of blood money as against life sentence in other laws 99. Other punishments that are available include binding over101. the convict shall pay compensation in addition to any other corporal punishment that the judge may impose100. 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. they are not one in the southern part of the country.sentence98. and public disclosure104. In Nigeria. 7. Others include warning. 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. Bigamy for instance. What is a crime is an expression of the societal norm and value. lesbianism etc are crimes in the Northern part of the country. For unintentional homicide. the convict would be required to pay diyyah 101 See sections 300 and 309. yet.219 SPC. 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 99 98 23 . one may say the criminal justice system has not been very successful in this area. reprimand. Where the offence of causing hurt is committed.

2010 106 105 24 . 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.O Yekini: µPlea 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. Except in ACJL where the Examples abound in the pages of our news papers.There are no concrete sentencing guidelines backed by law105 and even if there was one. In my opinion. Plea bargaining is another concept that have been admitted into our criminal justice system107. the practice of this concept has eroded the average Nigeria¶s confidence in the sentencing practice of the courts. 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. 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 µmind-blowing¶ sums of money are involved. Hence. Lagos. This is not far fetched. it has impacted negatively on the trend and occurrence of crimes in Nigeria. In the end. De Quintessence Publishers. 107 A. it not usually being followed by the courts106.