Suspended Sentence: An Unexplored Alternative in Nigeria

In Nigeria, the administrators of justice employ more of the custodial sentencing method i.e prison sentence, while non-custodial sentencing such as probation, community service, suspended sentence etc., is rarely employed.

This has had a devastating effect on the correctional system. In light of this, we would be looking at the concept of the suspended system in Nigeria.

Suspended Sentence is a form of a non-custodial sentence where the sentence is postponed or suspended which may be based on certain conditions.

The USA Supreme Court in Richards v Crumps 260 defines it as a conviction of crime followed by a formal sentence where the offender is not required,  at the time the sentence was imposed, to serve the sentence.

In other words, it is a sentence rendered by a judge which will not be enforced, if a defendant fulfils certain conditions (if conditions are imposed) and does not commit a further offence within that particular period. Conditions could include unpaid work, curfew, rehabilitation management etc.

Suspended sentence should be differentiated from probation and parole; there is no conviction or sentence in probation; in a parole a part of the sentence is served. The aim of a suspended sentence is to: decongest prisons, offer second chance to an offender, prevent the ‘bad influence’ from already convicted hardened criminals on simple offenders.

It is also important to note that it is the passing of the sentence that is suspended not the sentence itself.  This means that if there is a violation of the conditions of the sentence or another offence is committed within that period, the defendant would serve the initial sentence with an additional one.

This form of sentencing could be found in the legislation of different jurisdictions with variations.

The Administration of Criminal Justice Act, 2015 provides for suspended sentence in Section 460 (1) (3) (4):

“Notwithstanding the provision of any other law creating an offence, where the court sees reason, the court may order that the sentence is imposed on the convict be, with or without conditions, suspended, in which case, the convict shall not be required to serve the sentence in accordance with the conditions of suspension.”

A convict shall not be sentenced to suspended sentence…for an offence involving the use of arms, offensive weapon, sexual offences or for an offence which the punishment exceeds imprisonment for a term of 3 years

Although the conditions to be imposed is left to the discretion of the judges, it is accepted that such conditions are to have a bearing on the crime and not forbid conduct not reasonably related to future criminal conduct.

This provision not only provides for a suspended sentence and the types of offences that should come under it, but it also provides (specifically in subsection (4) of the Sec 460) that the court in the exercising of its power in subsection (1) shall have regard to the need to reduce congestion in prisons, rehabilitate prisoners by making them undertake productive work; and prevent convicts who commit simple offences from mixing with hardened criminals.

This measure will not only be helpful with the above but will also be useful in curbing in time of pandemic and epidemic. In offences like the breaking of curfews, violating the number of people allowed during a gathering etc., instead of a jail sentence or imposition of fines, the sentence could be a suspended one.

On a browse through the archive of cases, there were just a few cases where the suspended sentence was employed e.g. The State v Hassan Adu (1972) All NLR 636.

Seeing the benefits of this measure one cannot but ask why this type of sentence is not employed. As rightly noted by a government representative:

“Nigeria has the statutory provisions for probationary sentences, but the administration of justice hardly employs such provision …about 40 % offenders presently sent to prison should have qualified for such sentences …”

The non-employment of this measure is attributed to the fact that Nigerian judges tend to adopt a retributive approach despite legal provisions (for example Sec 311(2) (c) of ACJA), that encourage the use of suspended sentence and other non-custodial measures.

In conclusion, the modern main aim of sentencing should not be to punish but to preserve harmony in the society, reform the offender and pacify the victim. As a suspended sentence fulfils these criteria, it is a very viable tool in the administration of justice and should be employed.

By: Kalejaiye Jesugbemileke, an undergraduate student at the University of Lagos. The author can be reached via deborahleke@gmail.com