By Ogechi Ogu

As the global battle against the second wave of the COVID-19 pandemic rages, Prisoners Rehabilitation and Welfare Action (PRAWA) calls for the use of Non- Custodial sanctions for Petty/Minor offenders, especially violators of regulations/laws made to curb the spread of the virus.

The COVID-19 pandemic took the world unawares at its inception causing panic, confusion, and conflicting/ uncoordinated responses to it. Most nations of the world used the justice sector to respond to this pure health issue. However, having lived with the pandemic for over a year now, it is expected that nations review their approaches to handling the pandemic and address identified challenges.

Clearly, the justice sector’s response to COVID-19 and the enforcement of regulations and laws made by both the Federal and State Governments in this respect came with a lot of human rights abuse issues. Some of these are captured in PRAWA Impact E-Newsletters.

The masses especially the poor/vulnerable ones were disproportionately affected by these regulations/laws which restricted the movement of individuals and criminalized some other erstwhile legal human activities especially those people engage in putting food on their tables.

PRAWA and other well-meaning organizations raised concerns as to how these persons would survive the lockdown period in the absence of their daily source of income and recommendations were made for the government to provide palliatives to vulnerable Nigerians that needed this most.

Notably, PRAWA also advocated the utilization of Non-custodial measures for violators of the COVID-19 regulations. Use of Non-custodial sanctions helps in the reduction of the number of persons going into custodial centres and the likelihood of spread of the virus amongst inmates.

The implementation of non-custodial measures in Nigeria is supported by the Nigerian Correctional Service Act, 2019 and the Administration of Criminal Justice Act, 2015. The Nigerian Correctional Service Act provides that: The Correctional Service shall consist of, (a) Custodial Service; and (b) Non-custodial Service. Some of the objectives of the Act are to ensure compliance with international human rights standards and good correctional practices and provision of enabling platform for the implementation of non-custodial measures.

Section 37 (1) (a-e) of the Act provides for the different types of Non-custodial measures – community service, probation, parole, restorative justice measures, and any other non-custodial measure assigned to the Correctional Service by a court of competent jurisdiction.

While Sect 4 (1) (c) provides that: The Controller-General shall in accordance with the provisions of the Administration of Criminal Justice Act and other relevant legislation and policies administer non-custodial measures. PART 44 & 45 of the Administration of Criminal Justice Act, 2015 provides for Probation and Non-Custodial Alternatives and Parole respectively.

Interestingly, many states of the federation have adopted the ACJA 2015 by enacting their own state Administration of Criminal Justice Laws capturing provisions on Non-Custodial measures. However, these state Administration of Criminal Justice Laws toed the line of the ACJA in making provisions on the State Judiciary being involved in the supervision of non-custodial measures. This error has long been corrected in the Nigerian Correctional Service Act, 2019 and it is expected that state assemblies take note of this and make the necessary amendments. Many more states are yet to enact their own Administration of Criminal Justice Laws and expectation is that the state assemblies quickly do the needful in this regard.

We must however note that in spite of the identified strong legal backing for the use of non-custodial sentencing, it was not really in practice in Nigeria as in the early part of 2020, at the inception of the COVID-19 pandemic. Experts identified several challenges limiting the use of these measures at the auspicious time of the pandemic. Some of these challenges were connected to the non-adoption of the ACJA by some states and the level of preparedness of the Nigerian Correctional Service to take up the huge responsibility of implementation of Non-Custodial measures especially regarding the availability of requisite resources and capacity needed for this very new legal innovation.

Some of the identified gaps have been addressed under the Effective Implementation of Non-custodial measures Project of PRAWA funded by EU and supported by the British Council and RoLAC. The project has recorded a lot of successes in terms of the development of necessary resources and capacity building for the implementation of Non-custodial measures in Nigeria.

Obviously, the Nigerian Correctional Service and other justice sector institutions are substantially better positioned to implement non-custodial alternatives in Nigeria. It is on record that the NCOS were able to manage and ensure that the pandemic did not spread into the custodial centers across the country. This great achievement was made possible partly because of the use of alternatives to custodial sentencing (especially community service) during this period for violators of the COVID-19 Laws/regulations. At the peak of the pandemic in 2020, FCT non-Custodial Directorate alone supervised over 23,000 violators of COVID-19 regulations.

This is a huge positive for the criminal justice system and expectations are that this achievement would be built upon and non-custodial measures used not only for violators of COVID-19 laws but also for all petty/minor offenders, those that are low-risk offenders and can be conveniently corrected in the community at no security and safety risk to the society.

Available reports have it that in response to the second wave of the pandemic, states like Lagos are enforcing the regulations on COVID-19 through arrest, prosecution, and conviction of violators. However, worthy of interrogation is one of such reports in Premium Times of January 12, 2021, which states that 243 arrested violators were charged before a mobile court for breaching the state order and fined N20, 000 each.

For the Federal government, the Coronavirus Disease (COVID 19) Health Protection Regulations 2021 made by the President, Federal Republic of Nigeria provides that: An offence under these regulations is punishable on summary conviction by a fine or a term of six months imprisonment or both in accordance with Section 5 of the Quarantine Act (Section 34) State. Reports coming in from Edo have it that violators of COVID-19 protocols are given fines only. This gives cause for concern because though the fine is an alternative to custodial sentencing, courts are encouraged to use other types of non-custodial sentencing in deserving circumstances. We however recognize the constraint of states like Edo that are yet to enact their own Administration of Criminal Justice Laws with provisions on Non-custodial Measures.

Of major concern are the Anambra State COVID-19 and Other Dangerous Infectious Diseases Prevention and Eradication Law, 2020. The Offences and Penalty section provides for as much as N100, 000 or a term of one-month imprisonment for any person who violates any of the Restrictions and Lockdown orders in Sections 5-8 of the Law and N200, 000 upon conviction of the driver of any vehicle impounded within a lockdown period and any person who fails to wear a face mask in a public place will on conviction be sentenced to community service for 3 days or to a fine of N10, 000 or both.

Imo State COVID 19 Executive Order provides that the penalty for not wearing face masks is a maximum jail term of six months or N20, 000 in lieu.

An analysis of the sanctions provided in these laws and regulations gives cause for concern. Notably, though there are elements of the use of Non-custodial measures, most of these regulations still have custodial sanctions. Regrettably, also, the amount of fines given is so high and may be very difficult for some defaulters to pay. We all know the negative consequences of failure to pay fines. A critical question that calls our attention is whether a violator of COVID 19 Laws/regulations is a high-risk offender that deserves custodial sanction and whether this is a good time to congest our custodial facilities knowing the negative health implications.

We must be reminded that the use of custody as a measure of last resort is particularly critical at this time that frantic efforts are being made to ensure that the pandemic does not spread into custodial centers in Nigeria. Non-custodial sanctions especially community service was quite helpful in controlling influx into custodial centers during the peak of the pandemic in 2020. The pandemic is still here with us spreading and claiming more lives thereby calling for more creative interventions and measures to reduce the spread.

The need to reduce inflow into custodial centers utilizing non-custodial alternatives is much higher now; consequently, all stakeholders are called upon to note that: Legislations with a high amount of fines for violators of COVID 19 Laws and in fact another minor/petty offences can be counter-productive especially in situations where a violator is unable to pay such fine and ends up in detention. This can cause congestion of custodial centers and we know the health implications of this. The government expends more of state funds providing for these persons in custody and the risk of low-risk offenders being contaminated by high-risk offenders is higher. The negative cycle that makes for unsafe and insecure communities continues.

Incessant use of fine above other alternatives could make the state erroneously see this as an avenue for revenue generation at the expense of the reform the new innovation (non-custodial measures) is meant to bring to the Nigerian Criminal justice system. Over-reliance on a high amount of fines may lead to loss of focus and the beauty of other non-custodial alternatives like Community service, which provides the opportunity for the offender to be supervised while providing unpaid services to the community. An offender on Community Corrections is also exposed to opportunities of addressing his/her criminogenic needs and risks through counselling and treatment of the offending behavior as well as the opportunity of skills acquisition in deserving circumstances. The use of other non-custodial platforms such as restorative justice provides support for arresting agencies like the police in the exercise of their discretionary powers of arrest and detention. Deserving cases can be settled using the platform of restorative justice without the suspect being detained.

PRAWA, therefore, calls on 1. State assemblies yet to adopt the ACJA 2015 to ensure the enactment of the Administration of Criminal Justice Laws of their states with provisions on Non-custodial measures. Efforts should also be made to correct the error of saddling the Judiciary with the responsibility of the management of non-custodial measures as contained in the ACJA 2015 and addressed in the Nigerian Correctional Service Act 2019. 2. All Security and Justice Sector Institutions, Federal and State Executives, the Legislature at all levels, Cooperate Bodies, Civil Society Organizations, the Media, the general public, and especially the judiciary to leverage on the available legal framework to promote and support the use of non-custodial measures generally for all petty/minor offences and especially for violators of COVID 19 Laws/regulations. 3. All Stakeholders to support the implementation of the Nigerian Correctional Service Act 2019.

Ogu, a lawyer is the deputy director of PRAWA

In this article: