Nigerian Correction Services Act 2019: A New Ray Of Sunlight In The Nigerian Child Right And Juvenile Justice System Horizon By Osinemi Oyi

In August 2019, the President, Mohammadu Buhari signed into law the Nigerian Correctional Services Act to repeal the Prisons Act with a prime aim of refocusing  the mandate of that sector of our justice wing from its retributive and punitive thrust  to one with a fundamental objective of correction and reformation. This retrofitting of the institutional philosophy of our detention centers is one that that can realign our evolutionary arc as a country and ensure it is one bent towards the trajectory of progress. Nelson Mandela spoke wisdom when he said “a nation should be judged not by how it treats it highest citizens but by how it treats it condemned citizens.”

For child rights and protection enthusiasts and practitioners, the Nigerian Correction Services Act 2019 offers even more. Some of its provisions will enable some best practices and international conventions which uphold the best interest of children in conflict with the law. Improved welfare, alternatives for custodial sentences and a viable leeway for jurisdictions where the minimum age for criminal responsibility is abysmally low.  Although Nigeria ratified the Convention on the Right of the Child on 19 April 1991. Under the Nigerian Constitution, the Convention on the Right of the Child and other ratified international instruments do not routinely have the force of law in Nigeria until they are domesticated by the law making institutions. However, This has never been achieved, it is therefore exciting that some provisions of that convention have made their way into our jurisprudence through this act.

One of such provisions is that provided for in Section 35 which provides that:

35(1) Young offenders shall not be kept in adult custodial facilities.

(2) The correctional service shall establish separate male and female borstal training institutions for juvenile offenders in all states of the federation and their treatment, including rehabilitation, shall be the underlying principle for their custody.

 ANALYSIS

The provision above is im pari materia with all international conventions and best practices especially the convention on the rights of the child which in section 13 paragraph 4 which provides that Juveniles under detention pending trial shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults. The danger of criminal contamination to the detriment of the young alleged offender while in detention must not be underestimated. Mixed with hardened convict, the fragile and impressionable psychic fibers of these young alleged offenders can be stamped with negative energy that further criminalizes or exposes them to more violence and can create a harmful vicious circle. The aim of the juvenile justice system is to promote the child’s rehabilitation and reintegration, young offenders have a special potential for rehabilitation and change, and they are still developing, not fully mature, thus, exposure to violence and negative criminal influence and corrode their responsiveness to reintegration to the society.

Equally exciting is the provision in Section 45 sub 1 and 3 of the Act which provides that:

Sub (1) the comptroller general shall provide a platform for restorative justice measures including

1. Victim-offender mediation.
2. Family group conferencing
3. Community mediation
4. And any other mediation activity involving victims, offenders and community representatives.

Sub (3) restorative services may occur

1. At pretrial stage
2. At trial stage
3. During imprisonment
4. At post imprisonment.

 ANALYSIS

Section  45 sub 1 and 3 Nigerian Correctional Services Act as cited above ensures that concept of diversion which is in the child’s best interests is embedded within the normative framework of the juvenile justice system in particular and the Nigerian legal jurisprudence at large. The idea behind diversion is that of not bringing young offenders before courts, and instead, diverting most of these children – especially first time offenders and those tried for status/non violent offences- towards community solutions. The material section as cited above is in tandem with international conventions and best practices. For example United Nations Convention on the Right of a Child in Article 40.3 (c) makes provision for,

‘whenever appropriate and desirable, measures for dealing with such children without resort to judicial proceedings, provided that human rights and legal safeguards are fully respected’.

The United Nations Minimum Rules for administration of Juvenile Justice the Beijing Rules Section 11 states:

1) Consideration shall be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial by the competent authority.

2)The police, the prosecution or other agencies dealing with juvenile cases shall be

empowered to dispose of such cases, at their discretion, without recourse to formal hearings, in accordance with the criteria laid down for that purpose in the respective legal system and also in accordance with the principles contained in these Rules.

3) Any diversion involving referral to appropriate community or other services shall require the consent of the juvenile, or her or his parents or guardian, provided that such decision to refer a case shall be subject to review by a competent authority, upon application.

4) In order to facilitate the discretionary disposition of juvenile cases, efforts shall be made to provide for community programmes, such as temporary supervision and guidance, restitution, and compensation of victims.  

The arguments for increased utility of alternatives to a formal trial through some of mediums now recognized by the Nigerian Correction Services Act 2019 in our jurisprudence which includes victim offender mediation, family group conferencing, and community mediation is anchored on the best interests of the child – a basic principle of international child rights law.

The Convention on the Right of the Child (Article 3) stipulates that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.  In assessing the best interests of the child, his or her views must be accorded due credence, A child-friendly environment facilitates children’s meaningful participation in the decisions that will affect them. Courts might be too technical, children might lack the emotional and intellectual capacity to understand legal concepts and the nature of the proceedings against them, or withstand the excessive formality in the courtroom, the idea of witness boxes, and trial alongside adult offenders might be all too crushing and overwhelming for such young offenders.

Informal setting on the other hand can be adapted to the child’s level of understanding and ability to communicate, and takes into account the circumstances of the case. Simply capturing a child’s views is not sufficient; children should be consulted on the manner in which they wish to be heard. Meaningful participation requires that the relevant authorities create a safe and friendly environment and use appropriate methods of questioning to determine and take into account a child’s specific needs.

Other arguments in favor of this system is that it is more in sync with the overarching objective of an ideal juvenile justice system whose aim should primarily and ultimately be that of maximizing the potential for the alleged child offender to be reintegrated into society and for him or her to be able to assume a constructive role in it. This law now provides for such possibilities. Restorative justice mechanisms in its modus, usually consist of processes where the victim and the offender, and, where appropriate, any other individuals or community members affected by the crime, together participate actively in the resolution of matters arising from that crime.

One example of the restorative mechanisms mentioned in the act is Community mediation which involves facilitation of a series of meetings most likely at the behest of the offender or concerned authorities. All the people who are significant in the community including immediate and extended family members, friends, teachers, police representative are invited. the incidents that culminated in the crime is discussed and decisions made on how the conflict will be resolved, possible resolutions could include an apology to the victim, public work in the community, donation to charity, financial restitution or whatever is deemed appropriate. The involvement of the community is deliberate. It gives the young offender an opportunity to be reintegrated, he will feel humiliated by the presence of the community- which serves as a deterrence objective, and he will equally benefit from family support. This model has been successfully used in New Zealand from as far back as 1998/1999 where about 18% of juvenile offences which represents about 5000 cases were resolved utilizing community based conferencing.

The definition section of the act in section 46 which states thus:

Juvenile offender means an offender below the age of 18

 ANALYSIS

The provision which defines a juvenile offender as one under 18, provides a new legal safety net for juvenile offenders in the penal code jurisdiction of Nigeria who although under the age of 18 are been tried as adults for reasons that the penal code operational in some states in Nigeria sets the minimum age of criminal responsibility at an abysmally low age of 8 way below the threshold of 12 as set by the Committee on the Rights of the Child in the form of General Comment no. 10 The new act makes it possible, as long as such children are in detention for such juveniles, for them to be diverted away from the criminal justice system and assisted appropriately. The General comment 10 is a provision which details the character of the responsibilities of States Parties as expressed in Article 37 and Article 40 of the United Nations Committee on the Rights of the Child, and the implementation of these commitments at national level. It also addresses the minimum age of criminal responsibility. The obligation is plainly stated and predicated on universal understanding: a fixed minimum age of criminal responsibility of not lower than 12 years is recognized.

The rationale behind diversion is not to enable children evade the law or justice, however, the science of human behavior reveals why children deserve special protection when they are in conflict with the law. Recent neuroscience studies and developmental psychology shows that psychosocial infantile behavior matches with anatomical maturity or otherwise of children. Given their tender age, children are less capable of bringing under control their impulses, less capable of taking into account alternative course of action, less capable of taking stock of the full ramification of their impulsive actions, more prone to taking on risky actions. Thus, their behavior ought to be treated as a consequence of a transitional feature than of an irredeemable decadent character. Thus when their conduct causes a social injury, the focus should be on including them in a process that repairs that injury, not subjecting them through a retributive procedure that causes another social injury. When Children are in conflict with the law, if not appropriately assisted, such actions can undermine their integration and further plunge them deeper into exclusion

CHALLENGES

In as much as the new provision provides glimmer of hope for a virile juvenile justice jurisprudence, some perennial challenges still exists. UNICEF state of world children statistics show that only 30% of birth registration is done in Nigeria. It becomes difficult to establish the age of offenders especially given that offenders from an impoverished background are overrepresented as most juvenile offenders occupy the lower rung of the socio economic ladder, most have no access to an education, come from dysfunctional families, and have no parental supervision.

CONCLUSION

Indeed a lot of positives can be gleaned from the new act as elucidated above, interagency cooperation among the justice sector players should be reinforced to ensure that these provisions are regularly activated in the ultimate desirability of guaranteeing the best interest of the child.

Osinemi Oyi is a Lawyer and Child Right and Development enthusiast. He can be reached on osinemijames@gmail.com