AS A MATTER OF LAW CRIMINAL LAW REFORMS:-THE NEED FOR SENTENCING GUIDELINES BY ESSIEN J. ESEMA, PRINCIPAL PARTNER, ESSIEN ESEMA AND ASSOCIATES. The public outcry, demonstrations and resentment over the recent sentence handed down by Justice Abubakar Talba of Abuja High Court, on Mr. John Yusuf to wit: a two-year jail sentence for conniving with others to defraud the office and pensioners of N27.2bn, has brought to the front burner again, the need for Criminal Law Reforms in the Country. Most particularly, it has demonstrated the dissatisfaction of Nigerians in the sentencing practices in our courts. It is fair for the learned mind to dismiss the accusation of corruption against the judiciary with waive of the hand knowing that the fault does not lie with the Judiciary but with the Criminal Law as it stands today. On the other hand, the common man in the street is unable to comprehend why a man who stole a goat would receive two years imprisonment term same with the man who stole N27.2billion. The Lagos High Court decision in the case of Federal Republic of Nigeria-v- Chief Olabode George & Others, earlier brought into the fore the need for comprehensive Sentencing Guidelines for Federal and State courts in Nigeria. “The judgment of Mr. Justice J.O.K Oyewole attracted widespread commendations from practitioners and non-practitioners as a piece of jurisprudential tour de force and judicial gravitas. However there have equally been observations that perhaps the sentences meted out to the defendants are {depending on the observer’s point of view}, manifestly inadequate or grossly excessive”. Law is expected to give expressions to the sentiments and customs of the given society. The demonstration by the students in Abuja against the sentence aforementioned and the general condemnation across the entire country emphasize the need to improve and modernize our penal policies. The core of the early colonial approach to sentencing when the Criminal Code and Penal Code where enacted shortly after Amalgamation of Northern and Southern Nigeria in 1914, was the prevailing belief in the basic depravity of all human beings, a feeling that made any notion of an offender’s possible rehabilitation absurd. Thus colonial law enforcement swiftly attacked criminal behavior with public and often harsh punishment designed to maximize a sense of disgrace to the offender. The serious offences of the period which warranted stiff penalties, for instance in the Southern Part of the country included witchcraft, burglary, murder, trial by ordeal. Then, the Europeans where in charge of Government treasury and corruption of the magnitude experienced today were hardly contemplated. As a result, punishment prescribed then for official corruption was not more than three years incarceration with option of fines. Apart from the efforts of the courts to develop penal policy and sentencing practice, the statutory provisions in the substantive laws remain substantially static some fifty three years after independence. In the United States of America which we are copying in our presidential system of government, sentencing laws underwent substantial changes since in the 1970s. In 1984 US congress authorized the development of the Federal Sentencing Guidelines, the core of our submission in this write-up. There are no Federal Sentencing Guidelines in Nigeria today and our laws regarding criminal procedure and practice also is in a state of flux. Serious disparities in sentences are common in our courts today. There is nothing to moderate the disparities in the sentencing practices of our individual judges. The legal practitioners, NBA and most Human right Activists have continually decried the uncertainties and the disparities in laying down sentences by our members of the Bench to no avail. The general conception in Nigeria today is that “the higher the loot, the lighter the sentence”. “That you dare not steel small amount of money or you face life jail”. “The only way to get judgments in your favor is to steel big amount of money”. In this wise the judgments and sentences handed down to Chief Bode George, Ex-Police Chief Balogun and James Ibori, Ex Governoor of Delta State readily come to mind. Justice Abubakar Talba, just recently handed Mr. John Yusuf only a two-year jail sentence for conniving with others to defraud the office and pensioners of N27.2bn. The Judge gave him an option of fine in the sum of N750, 000 for the three offences he pleaded guilty. The Judge, in the eyes of the layman, seems to have allowed Mr. John Yusuf to go home with the almost N26billion of pensioners money. To them, the courts which should be temples of justice are in Nigeria, being irretrievably destroyed by corruption, to the concern of many. The slow pace of the fight against corruption in Nigeria has been blamed on both the Bench and the Bar. Many Nigerians took swipe at the legal practice vis-à-vis the fights against graft with the verdict that our courts have not lived up to the societal expectations. It is stating the obvious that the judiciary must play a critical role in the fight to rid Nigeria of corruption. But all these sentiments are borne out of ignorance of the working of the Criminal Justice system. The question is why do offenders get punished? The scope of this write up would not permit me to satisfactorily answer the question. But surfeit it to mention that there are four main theories of punishment namely:- (1) Deterrence (2) Incapacitation (3) Rehabilitation and (4) Restitution. The criminal justice system in Nigeria starts to run with the commission of a crime and straddles subsequent interventions by agencies of the system such as arrest, arraignment, trial, sentencing and punishment of the offender. Given that the country operates under a federal arrangement, the processes are governed by an array of federal and state legislations. The Criminal Code Act and the Criminal Procedure Act (CPA) as well as the Criminal Code Laws and Criminal Procedure Laws (CPLs) apply in the Southern States of Nigeria except Lagos State while the Penal Code (Federal Provisions) Act and the Criminal Procedure Code apply as federal legislation in the Federal Capital Territory of Abuja and the Penal Code Laws of the State and Criminal Procedure Codes apply as state legislation the Northern states of the country. The provisions of the codes are similar in many aspects although there are some significant variations especially as there were, at the time of their introduction, some efforts to ensure that these pieces of legislation reflected responsiveness to the religious and traditional cultures of the different peoples in the different parts of the country. Sentencing is a very broad field accommodating different approaches and ideas. Also, sentencing is an exercise of a discretionary power that is little guided in a country such as Nigeria. Hence, the power presents Judges and magistrates with a very wide playing field and accommodates individual inclinations and approaches or solutions to the same problem. The differences in approaches, however, become a problem in society when it presents the criminal justice system as irrational, inconsistent and unjust. Sentencing generally aims at the protection of the society through prevention of crime or reform of the offender which may be achieved by the means of deterrence, elimination or reformation/rehabilitation of the offender. The justification is that imposing the penalty will reduce the future incidence of such offences, by preventing the offender from re-offending or correcting the offender so that the criminal motivation or inclination is removed or by discouraging or educating other potential offenders. Sentencing guidelines are designed to indicate to judges the expected sanction for particular types of offences. They are intended to limit the sentencing discretion of judges and to reduce disparity among sentences given for similar offences. Although statutes provide a variety of sentencing options for particular crimes, guidelines attempt to direct the Judge to more specific actions that could be taken If we make laws for a comprehensive Sentencing Guidelines in Nigeria, it will avail all stakeholders the opportunity to appreciate the reasoning behind the sentences that the court handed out to the respective defendants. In criminology, the aim of criminal justice is to ensure that convicted criminals are given commensurate sentences that should definitely serve as punishment to the convicts; hopefully rehabilitate them and deter others from such act of criminality. In Nigeria we practice an adversarial Criminal Justice System, with an entrenched Criminal Codes where our statutes tend to prescribe minimum and maximum sentences accruable to infringement of particular laws. However other than judicial precedents there does not appear to be in existence in Nigeria a systematic Sentencing Guideline which will guide judges on how to pitch their level of sentencing upon conviction of offenders. For example it is an offence in Nigeria for anyone to offer inducement to a public servant in order to obtain any promotion or procure any contract. The law then lays down the punishment for infringement of this law: ‘Any public officer who in the course of his official duties, inflates the price of any goods or service above the prevailing market price or professional standards shall be guilty of an offence under this Act and liable on conviction to imprisonment for a term of seven (7) years and a fine of one million naira.’ “The difficulty is how does a court decide, upon conviction what sentence should be meted out to individual defendants? Should it go for the maximum sentence or not? In the Olabode George case, all the defendants were charged with offences under section 22 of the Corrupt Practices & Other Related Offences Act of 2000, but were ultimately acquitted of the charges. However had they been found guilty of the offences, how would the court have sentenced them? Should Chief Olabode George who was at the material time, the chairman of the board of the Nigeria Port Authority {NPA} receive the same penalty as Alhaji Zanna Maidaribe, who was only a member of the board? What were the aggravating and mitigating factors which the court ought to properly consider before it sentences a convict on these charges? These and such other questions would have been amply answered if there was in place a comprehensive Sentencing Guideline in Nigeria”. It is clear from the above that a well-entrenched Sentencing Guidelines will be very helpful not only to the judges, but also to the advocates and the offenders alike. One crucial advantage of having up-to-date Sentencing Guideline is that as opined by one scholar, “it breathes life into stale statutory provisions”. Sometimes the law lags behind in the dynamics of the advancement and or changes in the society. For the law to be continually relevant, it must meet the requirements of modern society. It serves no useful purpose if the language of the law has no bearing to the reality in its society. An example is the provision of section 390(9) of the Nigeria Criminal Code which provides that upon conviction of theft, the offender shall, “If the thing stolen is of the value of one thousand naira or upwards, the offender is liable to imprisonment for seven years.” This is a clear example of the law not getting up to scratch with the reality of the time. A Sentencing Guideline body will/should research the law and make recommendations that will ensure that the law does not lag behind its society. This might involve how to appraise monetary values of things mentioned in a particular statute. Another advantage of having a clear sentencing guideline is that it allows for uniformity or near uniformity in the treatment of offenders in all the criminal courts in a country. This is because the Guidelines would have prescribed how to treat offenders in specific circumstances. A Sentencing Guideline body will also spell out what factors the court must consider as aggravating an offence and what factors mitigate it. An equally important advantage of the Guideline is that any aggrieved party can approach a superior court to quash a sentence it perceives as either unduly lenient or unduly excessive, as the case may be. Finally, another key point of a Sentencing Guideline would have been to outline what amount of credit the court ought to give to an offender for pleading guilty to a charge. For instance, Should a guilty plea constitute mitigating factor of the sentence or not? In the light of the cancerous and debilitating effect of corruption, the following are, in my opinion, the aggravating features of the offences involving official corruption: 1. Is the defendant a public officer acting in his official capacity? This is especially serious given the ruinous impact of corruption on our polity. In the above mentioned case, Chief Olabode George should in my opinion, have received a harsher penalty than the rest not only because he was a former Governor of a state but also because he was at all material time the chairman of the board of the NPA; 2. When the amounts involved are staggering. 3. If there was pre-planning and sophistication in the commission of the offence: e.g. in the way and manner the defendants and their accomplices went about ‘splitting’ the contracts in Bode George’s case in order to circumvent the Government directive on spending limits; 4. The time span of the offences. The actions of the defendants (in Ayuba’s case) were sustained and took place over a number of years; 5. The failure to plead guilty. If the defendants chose to contest the charges despite the overwhelming evidence against them. 6. Finally, the total lack of contrition shown by he defendants. (This is better analyzed by Adebayo Kareem, a Solicitor-Advocate who is a Senior Prosecutor with the UK Crown Prosecution Service London in his article on this subject). In Nigeria, Lagos State has always led the way in Law reforms. In lauding the initiative to codify the sentencing guidelines in Lagos State, Ogungbesan noted at a workshop recently that because the laws of the society are being subjected to review at different times, it is imperative to reform the sentencing guidelines. At the same occasion, Magistrate Tobi canvassed a section in the proposed law that will make it binding on judges not to deviate from the sentencing guidelines, except under certain circumstances. To Prof. Artsenuwa, there is need to be scientific in approach to sentencing because of the constant changes in the society. Besides, she noted that the guidelines will check the tendencies of the judges to be bias in exercising their sentencing power. As reported by The Guardian, Prof. Adeyemi, who was the chairman of the event, also stressed the need to make the guidelines binding on the judges, noting that the judiciary is among the conservative environments and judges are the most conservative as they are not always ready to do things in new ways. He lauded the initiative which, he said, will lay a solid foundation for legislative framework for sentencing in the courts. Essentially, the Lagos State Law Reform Commission, saddled with the responsibility of initiating or receiving proposals for law reforms in order to bring them in consonance with the prevailing social and moral values of modern society, has produced a draft of the sentencing guidelines on which the stakeholders are deliberating. Other states should follow suit. Why Fine? Fine as a means of punishment is economical, both in terms of the costs of it enforcement. It requires much less funds and human resources for its enforcement when compared to alternative forms of punishment. Another advantage of it is that it does minimal social damage to the offender and his family, because it mostly does not interrupt his job, leisure or family ties. However, some critical observations have been made in respect of the imposition and administration of fine. These include that: (i) Unless fines are closely related to the means of those ordered to pay them, they are unjust as between individuals, and the injustice increases with the scale of fines; (ii) Fines are not always practical alternatives; because the offender may not be able to pay, therefore, end up in prison; (iii) Some people may regard fines as no more than occupational risks, virtually giving them the licences to carry on with their illegal activities, since it is minor tax for huge profits; (iv) Enforcement is all too often haphazard and the prompt identification and pursuit of defaulters is a more critical element in enforcement than the particular measures, which are employed; (v)Recourse to imprisonment is neither necessary nor inevitable, and manifestly unjust in its consequences. Why Blame the Judge? The judge is helpless in a situation such as stated in John Yusuf’s case above. He applied the law as, not as it ought to be. The maximum sentence provided under the Criminal Code was a mere two (2) years imprisonment, with option of fine. The learned High Court judge applied his discretionary powers and inflicted the maximum sentence available under the law. He took into consideration the fact that the accused is a public officer, first offender and above all had pleaded guilty to the charges thereby saving the court enormous time and resources in going through the whole trial with possibility of the prosecutor goofing during trial. The only are I am not too pleased with His Lordship in the sentencing exercise is that for organized crimes, offences involving corruption, embezzlement of public funds, and other economic crimes in addition to seizure of assets, offenders should also be sentenced to terms of imprisonment without option of fines after due trial. But legally speaking, he exercised his discretion judicially even if not judiciously. It would have resulted in judicial rascality for the judge to hide under his discretionary powers and sentence an accused person to higher prison terms than that provided by the statutory laws. The society wants crimes not o occur, and punishes those who commit them in order to prevent their reoccurrence. This social control is itself governed by established legal principles and norms which guide our courts. Obviously, the Courts are there to interpret the law not to make them. It is the National Assembly (for the Federation) and the State Houses of Assembly, (for the component states) that have the constitutional powers to make Laws and amend same as need arises. As it stands today under the doctrine of separation of powers, the ball is in the Lawmakers’ courts, to fashion out a sentencing policy and guidelines for our judiciary, and to amend the colonial Criminal laws to meet with today’s reality. The ultimate objective of the criminal law is public protection, and it uses the moral connotation of conviction to reinforce the utilitarian objectives of deterrence and social control.
Posted on: Thu, 04 Sep 2014 22:14:09 +0000
Trending Topics
Recently Viewed Topics
© 2015