GODFREY OKOYE UNIVERSITY
COURSE: CRIMINAL LAW II (LAW 322)
2ND SEMESTER 2024/2025
COURSE CONTENTS
TOPIC 1. THE POLICE AND THE ADMINISTRATION OF CRIMINAL JUSTICE IN NIGERIA – DR OKIKA
1.1 Evaluation of the Relevant Provisions of the Police Act
1.2 The Command and Control Structure of the Police
1.3 Functions and Duties of the Police
1.3.1 Police Duties of Arrest, Investigation and Prosecution
1.3.2 Constitutional Roles of the Police: The Inspector General of the Police and the Police Service Commission.
Basic Principles on the use of force and Fire Arms by Law Enforcement Officials.
TOPIC 2. NIGERIAN CORRECTIONAL SERVICE CENTRES, STRUCTURE, OPERATIONS AND THE LAWS – DR OKIKA
TOPIC 3. OFFENCES AGAINST PROPERTY UNDER THE CRIMINAL CODE AND THE PENAL CODE – DR. OKEY OMEH 0803743875
TOPIC 4. OFFENCES AGAINST PUBLIC ORDER; THE STATE AND ADMINISTRATION OF JUSTICE. – DR. OKEY OMEH
TOPIC 5. OFFICIAL CORRUPTION AND ABUSE OF OFFICE- DR. OKEY OMEH 08032743875
5.1 Anti-Corruption Agencies and the Relevant Laws
TOPIC 6. THEORIES AND CATEGORIES OF PUNISHMENT – MRS. JOY NNANI 08037910286
TOPIC 7. GENERAL PRINCIPLES OF SENTENCING - MRS. JOY NNANI
TOPIC 8. GENERAL DEFENCES TO SPECIFIC OFFENCES – DR. OKEY OMEH
TOPIC 9. RIGHTS OF THE DEFENDANTS UNDER THE NIGERIAN CRIMINAL JUSTICE SYSTEM. – DR. OKIKA
9.1 Rights Before Trial
9.2 Rights During Trial
9.3 Post-Trial Rights
TEXTS
RECOMMENDED TEXTS/STATUSES
1. Criminal Law in Nigeria by Okonkwo and Naish (Revised Edition).
2. Criminal Law in Nigeria: A Practitioner's Guide – by Anayo Ede, Ph.D
3. The Nigerian Criminal Code Companion by E. O Fakayode
4. Notes on Criminal Law in Nigeria by Muhammad Tukar Jibril
5. Black’s Law Dictionary, 11th Edition
6. Criminal Law in Nigeria, Offences and Defences by George Nnamani
Statutes
Criminal Code Act
Penal Code Act/ Sharia Penal Code
Police Act
The Constitution of the 1999 Federal Republic of Nigeria (as amended)
Lesson One:
THEORIES OF PUNISHMENT
Introduction:
In punishing an offender, the sentence is handed down after a plea of allocutus, which sentence is guided by the various principles or theories of punishment in order to attain the purpose of criminal law. The questions that arise at this point include: Why should an accused person be punished? What are the theories that guide the punishment of the accused persons? What purposes are served or should be served by those punishments as guided by those theories?
On the first question: Why should an accused person be punished?
Punishment is imposed on wrongdoers for the purpose of deterring them from repeating the same wrongdoing and reforming them into law abiding citizens. A punishment is a consequence of an offence which must be written and provided for in the law. And the main aim of punishment is to ensure that the people obey the laws and avoid committing criminal offences.
On the 2nd and third questions, it can be explained that a punishment is given when a person goes against a law or rule which has been laid down. However, there are different theories about what the most effective punishment is and what its main purpose should be.
1. RETRIBUTIVE THEORY: This theory of punishment is based on the principle- ‘An eye for an eye, a tooth for a tooth, blood for blood’. Retribute means to give in turn. This theory recommends the same punishment for the offender as the offender injured the victim. It insists that the offender should feel the same pain as the victim. The penalty will be equivalent to the injury caused by the offender. This theory was popular in ancient times.
The object of this theory is to make the criminal realise the suffering or the pain by subjecting him to the same kind of pain as he had inflicted on the victim. It aims at taking revenge rather than social welfare and transformation. It is geared towards avenging a crime.
This theory has been criticised by some schools of thought for being brutal and barbaric. But others believe that it is not just a necessary condition for punishment but also a sufficient one. It seeks to justify the imposition of punishment on the offender on the basis that the offender must be made to suffer as his victim, even if it has no restorative benefit to the victim.
Apart from this theory, there are other theories which have been classified under the utilitarian principles. This principle, when directed towards making social, economic, or political decisions, would aim for the betterment of society as a whole. (Utilitarianism will say that an action is right if it results in the happiness of the greatest number of people in a society or a group). These other theories are:
2. DETERRANT THEORY
The word < Deter means to abstain from doing an act. The main purpose of this theory is to deter (prevent) the criminals from committing the crime or repeating the same crime in future. Under this theory, severe punishments are inflicted upon the offender so that he abstains from committing a crime in future, and it would also be a lesson to the other members of the society as to what can be the consequences of committing a crime.
This theory has been said to be effective, even though it has certain defects. In applying this theory, it has been said that the reason for punishment is to reduce crimes through fear by discouraging others from engaging in similar conduct in the future.
According to this theory, it would appear that the more criminals are punished more severely, the more others would be effectively deterred from similar crimes.
From the foregoing, it is obvious that the deterrent theory has 2 different purposes, namely: Specific and General deterrent.
a. Specific Deterrent: The Punishment given to the offender will be such that it will deter that particular individual from committing a crime in future and under
b. General Deterrent: A severe punishment is given to the offender to prevent or deter potential offenders from engaging in similar or any criminal activity.
3. PREVENTIVE THEORY OR INCAPACITATION
The preventive theory is founded on the idea of preventing the repetition of crime by disabling the offender or rendering him incapable through the measure of Imprisonment, the Death penalty or exile of an offender. It is also called incapacitation theory, which means to put an end to or finish the capacity of criminals by giving such severe and definite punishments.
This theory also aims to prevent the crime rather than avenging it. As per this theory, the idea is to keep the offender away from the society. The criminal under this theory is punished with death, life imprisonment and other similar types of punishment. While sending the criminals to the prisons the society is in turn trying to prevent the offender from doing any other crime and thus protecting the society from any anti-social elements.
Prevention would accordingly seem to be the chief and only universal purpose of punishment. The law threatens certain pains if you do certain things contrary to the law. If you persist in doing them, it will inflict the pains so that its threats may continue to be believed. The Preventive theory concentrates on the prisoner/offender and seeks to prevent him from offending again in the future.
Life imprisonment could also serve the purpose of prevention of crime as against the definite punishment of death, because incapacitating the criminal behind bars throughout his life by incarceration appears to be the best method of prevention. Criminals who are incarcerated sometimes never repeat their crime. One of the justifications of this theory is that the criminal, if serving long prison terms, though somehow incapacitated, would avail himself of the treatment and training programmes in the prison, the aim of which is his rehabilitation, which is in line with the modern trends in correctional jurisprudence.
Criticism: The main criticism of this theory is that Preventative Punishment has the undesirable effect of hardening first offenders, or juvenile offenders, when imprisonment is the punishment, by putting them in the association of Hardened Criminals.
4. Reformative/Rehabilitative Theory
This theory is based on the idea that crime is a kind of disease and offenders should be treated well, so that criminals may be able to recover from the disease. It holds that crime should be diagnosed, and then proper treatment should be given to the criminal. The idea behind this theory is that “No one is a born criminal, and criminals are also humans”
The purpose of this theory is to reform the criminal. It wants to strengthen the character of criminals so that they may not become victims of committing crime. So according to this theory, all criminals should be given physical, moral and intellectual training in order to improve their character and make them law abiding citizens. This theory has proved to be successful and acceptable by many jurists.
The Positivist School of thought believes that there are some external forces which compel criminals towards criminal activities. These external forces are: biological, psychological or sociological forces. Therefore, it is not the criminals’ free will to commit a crime, and they should be rehabilitated instead of giving them severe punishment in order to reintegrate them back into society.
REHABILITATION/CORRECTIONAL PROGRAMS INCLUDE
a. Vocational Training
b. Educational Training
c. Religious Sessions
d. Medical treatment
e. Counselling
f. Games and other recreation
g. Cultural activities
Despite the variation of views of the various schools of thought under this theory of punishment, this theory generally holds the view that the purpose of punishment should aim at the reformation or rehabilitation of the criminal. The central concern of this theory is aimed at making the criminal, as far as possible, a better citizen using moral and ethical training. The basis of the argument of this theory is that crime is not the result of an inherent tendency in a criminal but is much more a product of their environment, their lack of opportunity and training.
5. EXPIATION THEORY: (recompense or reparation theory
According to this theory, when a criminal is punished or fined then he becomes innocent, so it means that if the offender repents or pays compensation and realizes his mistake then he must be forgiven.
Second Lesson: PUNISHMENT
Punishment is the immediate consequence that follows the conviction of a person who has committed a crime. It is a kind of suffering, loss or pain which is imposed because a person has been found guilty of some criminal violation. It must be specifically provided for in the statute creating the relevant offence. According to this understanding, no act is regarded as a crime when there is no corresponding punishment expressly provided for it in the law. To discourage citizens from getting involved in crime, certain punishments have been laid down by the law. Section 17 of the Criminal Code provides that: “Subject to the provisions of any other written law, the punishments which may be inflicted under the criminal code are death, imprisonment, caning, fine and forfeiture.
ELEMENTS THAT DETERMINE THE NATURE OF PUNISHMENT
In every crime, there are three elements to be taken into account in determining the appropriate measure of punishment. These include the motive of the commission of the offence (Okonkwo and Kate), the magnitude of the offence (killing father, bakasi boys), and the character of the offender (serial killer).
We shall take them one by one.
a. The Motive of the Offence: Here, the motive refers to the temptation or tendency to commit a crime. This element entails that the greater the temptation to commit a crime, the greater the punishment should be.
b. The Magnitude of the Offence: This element states that the greater the offence, the greater should be its punishment. E.g. killing of one’s father.
c. The Character of the Offender: According to this element, the worse the character or disposition of the offender, the more severe should be his punishment. (Serial killer)
TYPES OF PUNISHMENT UNDER THE CC
1. Death penalty. The death penalty, also known as capital punishment, is given for the following offences:
· Murder
· Armed Robbery
· Treason
· Directing and controlling or presiding at an unlawful trial by ordeal from which death results
In the northern part of Nigeria, where the Sharia law applies, Adultery, blasphemy, and homosexuality also carry the death penalty. Although courts continue to impose the sentence, the death penalty is not commonly carried out in Nigeria. Capital punishment is usually by hanging or carried out publicly in the use of a firing squad.
Section 33(1) of the Constitution of the FRN provides that every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty.
From this provision, the constitutionality of the death penalty is not in doubt. In fact, the Supreme Court of Nigeria upheld the constitutionality of the death sentence in the case of Onuoha Kalu v. The State. In this case, the appellant was charged with the offence of murder. The trial court found him guilty and sentenced him to death.
Aggrieved with this decision, the appellant appealed to the Court of appeal and his conviction was upheld. Unsatisfied, he subsequently appealed to the Supreme Court. After considering submissions by all parties, the Supreme Court came to the conclusion that the death penalty was indeed constitutional.
EXCEPTION TO THE DEATH PENALTY (SECTION 319(1-3) Criminal Code)
Even though the sentence of death is provided for in the constitution, a death sentence is not carried out against a pregnant woman or a young person. If convicted of a capital offence, they will instead be sentenced to life imprisonment. See sec 319 Criminal Code.
In the FCT, the law provides that the pregnant woman shall be sentenced to death, but her execution will be stayed until the baby is delivered and weaned. This is contrary to the provision in the Child Rights Act, which also covers FCT, Abuja. Section 221(3) and (3) of the Child‘s Rights Act provides that:
“No expectant mother or nursing mother shall be subjected to the death penalty or have the death penalty recorded against her…”
Sec. 368(2) CPA provides that: “Where a woman found guilty of a capital offence is found in accordance with the provisions of section 376 of this Act to be pregnant, the sentence of death shall not be passed on her, but in lieu thereof, she shall be sentenced to imprisonment for life.
Sub (3) CPA “Where offender is a young person (3) Where an offender who in the opinion of the court had not attained the age of seventeen years at the time the offence was committed is found guilty of a capital offence, sentence of death shall not be pronounced or recorded, but in lieu thereof, the court shall order such person to be detained during the pleasure of the President…”
2. IMPRISONMENT: Imprisonment is one of the available punishments under the Nigerian criminal justice system. In fact, it is the most common sentence administered by the court in Nigeria. This is the deprivation of liberty of an offender. This type of punishment is the most preferred for some jurists. The length of imprisonment is usually at the discretion of judges and in most cases which are not serious in nature, fine can be given in lieu of imprisonment.
382 CPA. Power to inflict a fine instead of imprisonment
(1) 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 instead of imprisonment.
(2)
See the case of Thomas v. The State (1994) 4 NWLR (Pt. 337), (1994) 4 SCNJ 102. Where the Supreme Court held that the power given to impose a fine instead of imprisonment should rarely be used in respect of more serious felonies.
In the case of a conviction in the High Court, the amount of the fine shall be in the discretion of the court, and any term of imprisonment imposed in default of payment of the fine shall not exceed two years.
Imprisonment may be ordered to run concurrently (at the same time) or consecutively (one after the other). The court may decide that the time of imprisonment starts from detention or from the day of the sentence.
3. FINE: This is a form of punishment where an offender is made to pay a certain amount of money as a way of making him feel the pain of his crime. A person convicted of an offence punishable by fine may be ordered to suffer imprisonment, in default of payment of the fine. A court, in fixing the amount of any fine to be imposed on an offender, shall take into consideration, amongst other things, the means of the offender, ie the ability of the offender to pay the fine.
Where the accused is unable to pay the sum immediately or at the time ordered by the court, the court may do the following:
(a) issue a warrant of commitment forthwith;
(b) allow time for the payment of the said sum;
(c) direct payment of the said sum to be made by instalments; or
(d) direct that the person liable to pay the said sum shall be at liberty to give, to the satisfaction of the court.
Convicts who are sentenced to pay fines may be arrested and imprisoned if they fail to pay the fines.
In assessing fine as punishment the court must not exceed the maximum fine prescribed for the offence committed by the accused. Fine must not be used as punishment for serious offences.
4. CANING/CORPORAL PUNISHMENT:
Caning is a physical punishment, such a flogging or actual whipping of an offender to inflict pain and discomfort for an offence committed by the offender. Its purpose is to disgrace the offender. No person shall be sentenced to be caned more than once for the same offence. No sentence of caning shall be passed on any female or any male who, in the opinion of the court, has attained the age of 45 years.
The instrument of Caning shall be with a light rod or cane, and the number of strokes must be specified in the sentence and shall not exceed twelve.
In certain cases, the court may sentence an offender to caning either in addition to or instead of any other punishment to which the offender is liable.
Where an offender’s sentence involves canning and the offender appeals, the punishment will be stayed and the accused shall be kept in custody or may be released on bail as the court may order, until such a time when the sentence has been confirmed or varied by the appellate court, and it shall thereafter be carried out as soon as practicable. If the person is on bail, and does not voluntarily surrender himself for the punishment, the court which convicted such person may issue a warrant to arrest the said person who shall thereupon be apprehended and the sentence of corporal punishment shall thereafter be carried out as soon as practicable at a place as ordered by the court.
Under the Islamic Criminal Justice System, caning is what is known as haddi lashing. Though, under the Islamic law, the sentence of caning may be more than the twelve prescribed, depending on the circumstances of the case.
5. FORFEITURE
This is the loss or giving up of something as a penalty for wrongdoing. In MOHAMMED ABACHA v FRN, the Supreme Court of Nigeria stated:
That the word ‘forfeiture’ means- ‘the divestiture of property without compensation. The loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty. It follows that, ‘title in those assets and properties forfeited is instantaneously transferred to another, such as the government.
Criminal forfeiture can be defined as a governmental proceeding brought against a Person to seize property as punishment for the reason of criminal behaviour.
Section 19 of the Criminal Code provides that: ‘When any person is convicted of an offence under section 98, 98A, 98B, 99, 112, 117, 126, 128 or 494, the court may, in addition to or instead of any penalty which may be imposed, order the forfeiture to the State of any property which has passed in connection with the commission of the offence or if such property cannot be forfeited or cannot be found, the court shall order of such sum as the court shall assess as the value of such property, and any property or sum so forfeited shall he dealt with in such manner as the Governor may direct. Payment of any sum so ordered to be forfeited may be enforced in the same manner and subject to the same incidents as in the case of the payment of a fine.’
Current issues on common punishments in Nigeria:
1. The exception as to a pregnant woman being sentenced to death has been reviewed to state that the sentence of death shall be passed on her, but its execution shall be suspended until the child is delivered and weaned.
2. The mode of execution now includes death by lethal injection.
3. This is a conflict of the law between 2 Acts of the National Assembly the ACJA and the Child’s Rights Act.
Innovations ON PUNISHMENT UNDER THE ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015:
SECTION 402(1) of the ACJA provides that: punishment of death is inflicted by hanging the convict by the neck till he is dead or by lethal injection.
Section (2) provides that: Sentence of death shall be pronounced by the court in the following form.
“The Sentence of the court upon you is that you be hanged by the neck until you are dead or by lethal injection.”
SSection 404 provides: Where a woman found guilty of a capital offence is pregnant, the sentence of death shall be passed on her, but its execution shall be suspended until the baby is delivered and weaned.
This is contrary to the Child’s Rights Act, which provides under Section 221 of the Child‘s Rights Act provides that:
“No expectant mother or nursing mother shall be subjected to the death penalty or have the death penalty recorded against her…”
Section 405 provides: Where a convict who, in the opinion of the court, had not attained the age of 18 years at the time the offence was committed is found guilty of a capital offence, sentence of death shall not be pronounced or recorded but instead of it, the court shall sentence the child to life imprisonment or such other term as the court may deem appropriate in considering of the principles in section 401 of this Act.
- Lecturer : Joy Nnani