Nigeria confronts significant challenges in managing offenders. These challenges include the excessive use of incarceration, which contributes to prison congestion and the repeated failure of rehabilitation and re-integration programmes run by the correctional service to reduce re-offending.
Indeed, in the last many years, the spectre of overcrowding in custodial centres across the country looms large over Nigeria’s criminal justice system, stretching the resources of the centres and correctional staff well beyond their limits. Practically every custodial centre in urban areas is overcrowded and in squalid conditions. The shared enormity of overcrowding frustrates any real attempt at rehabilitating and reintegrating offenders back into society.
To address these challenges, a number of reform-oriented legislation were enacted, including the Administration of Criminal Justice Act (ACJA) 2015 and the Nigerian Correctional Service Act (NCSA) 2019. The ACJA is a federal law, and states have also passed the Administration of Criminal Justice Laws (ACJL) to regulate criminal procedure in their respective domains.
ACJLs are, in most respects, similar to the ACJA. While the ACJA/ACJL provided for courts to impose alternatives to prison sentences on offenders, the NCSA established the authority of the Nigerian Correctional Service (NCoS) to administer alternative sentences and created mechanisms for the management of such sentences. Alternative sentences, otherwise known as non-custodial measures, include parole, probation, community service sentences, fines and restorative justice measures, amongst others.
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Offenders who are sentenced to non-custodial measures (NCM) serve their sentences within the community, and ideally, are made to undergo to therapies designed to help the offender take responsibility for his or her wrongdoing, reparate the victim, and do some form of penance to the community.
Thus, one of the benefits of non-custodial sentences is that they are individualised to address the offender’s criminal behaviour and rehabilitation needs. Because offenders serve their sentences outside the prison and do not have to spend any prison time, non-custodial sentences also ease the burden on correctional infrastructure, resources, and staff, as well as the taxpayer who typically bears the burden of incarceration.
The last few years witnessed concerted efforts to implement non-custodial measures in Nigeria, prompted particularly by the COVID-19 pandemic, which moved courts to begin to issue non-custodial sentences to avoid a COVID-19 outbreak in custodial centres. At the peak of the epidemic between April and June 2020 in Nigeria, not less than 25,000 offenders had been sentenced to community service by courts across the country.
When the COVID-19 pandemic eased, however, the drive by courts to utilise non-custodial sentences tapered down. During this period, the prison population also rose to high heights, standing at 78,621 as of March 11, 2024, suggesting a need to intensify prison decongestion efforts. The official capacity of custodial centres in Nigeria is 50,083.
It is imperative to revive interest in and utilisation of non-custodial measures. The need to humanise punishment, ensure that punishment is individualised to address the needs of the offender for rehabilitation and reintegration, and ensure that punishments are not unnecessarily harsh and incarcerative but fit the offender and his crime provide strong and, in our context, ever-present incentives to increase the use of non-custodial measures.
One of the key approaches to non-custodial measures, as enshrined in the NCSA, is restorative justice. Section 43 of the NSCA promotes victim-offender mediation, family group conferencing, community mediation, etc, to resolve criminal complaints and requires that these approaches be implemented at the pre-trial and trial stages and while serving a prison sentence or after.
While it is commendable that the NCoS has begun to utilise restorative justice, NCoS statistics show that the level of utilisation remains low. As of March 4, 2024, 103 inmates participated in a restorative justice process. At 391 and 18, respectively, the numbers are also low for offenders who served community sentences or were placed on probation.
Considering the size of our prison population, these figures illustrate that non-custodial measures are not being utilised optimally. Failure to employ them could also portend a paradox: on the one hand, correctional staff are being burdened with managing overcrowded custodial centres, and on the other hand, the NCoS’ non-custodial staff are not being productively deployed. The taxpayer shoulders the burden of funding such a system.
The implementation of non-custodial measures, as envisioned by the ACJA and the NCSA, directly addresses the issue of overcrowded prisons, ensuring that the correctional service can fulfil its role of rehabilitating offenders more effectively.
It is imperative that stakeholders, including legal professionals, policymakers, and the public, actively engage in discussions and initiatives that further the cause of non-custodial measures for the betterment of Nigeria’s criminal justice system.
Murkthar and Oluwatoyin work with the International Institute for Democracy and Electoral Assistance (International IDEA)