The issue of penalty for crossing legal boundaries is one that has piqued the curiousity of many scholars for many years. Although it has been criticized as a form of penal sanction, imprisonment of offenders remains a common punishment for crime as authorized by local and international human rights law to the extent that it is imposed following a fair trial and does not amount to treatments prohibited by human rights standards as being clearly disproportionate to the criminal offence committed.

While imprisonment is required in many cases involving violent offenders, it is not a panacea in terms of crime prevention or inmates’ social reintegration. Furthermore, Nigeria’s correctional system faces major challenges due to overcrowded and outdated facilities, resulting in deplorable conditions of detention for inmates, which can have negative effects on their physical and mental health and impede their future adjustment to an ordinary life in the community. The most commonly proposed and applied alternatives to imprisonment are of a non-custodial nature, and it is the use of these alternative sanctions, especially with respect to the roles of the judiciary, that this article beams a searchlight upon.

Nigerian Criminal Justice System and the Challenge of Corrections

One of the many challenges of the Nigerian Criminal Justice System is the issue of over-crowed custodial facilities. While this is not a new phenomenon in many parts of the world, it is often exacerbated in many Third World and developing countries like Nigeria. Overcrowding in Nigerian Custodial Centres occurs when the number of detainees exceeds the capacity of the facility to the point where inmates cannot be housed in a humane, healthy, and adequate psychological condition.[1] Within the Nigerian context, this is commonly referred to as ‘Custodial Centre Congestion’ and, in such a situation, custodial centers house twice or three times their typical capacity.

As many countries around the world continue to consider non-custodial measures as a means of achieving effective inmate reformation, rehabilitation, and reintegration, Nigeria has jumped on board by enacting the Nigerian Correctional Service Act, 2019 and the Administration of Criminal Justice Act, 2015. Both of these pieces of legislation are essential to the criminal justice system in Nigeria, and they both include provisions for the implementation of non-custodial procedures. It is therefore critical to investigate the role of the judiciary in bringing the words of the law to life.

Understanding Non-Custodial Measures and the Provisions of the Law in Nigeria

Non-Custodial Measures are sentences or disposition measures that are imposed on an offender but do not entail incarceration. Depending on the nature of the offense, supplementary or non-custodial measures such as disqualification, confiscation, and compensation may be warranted.[2] In other words, the term is served outside of a physical facility designated as a correctional centre and administered by the State or any other entity acting on its behalf.

As doubt about the utility and effectiveness of imprisonment has grown, experts and scholars have attempted to devise more beneficial approaches to help reach a better outcome for both the community and the criminal. The United Nations Standard Minimum Rules for Non-Custodial Measure (also referred to as the Tokyo rules) is one such measure . The goal of non-custodial measures, according to the Tokyo Rules, is to develop effective alternatives to incarceration for offenders and to allow authorities to tailor criminal sanctions to the needs of the particular offender in a way commensurate to the offence committed.[3]

Non-custodial procedures are also enshrined in Nigerian local laws, such as the Administration of Criminal Justice Act, 2015 and Laws of various States, and the Nigerian Correctional Service Act, 2019. Suspended sentences, community service, fines, curfews, parole orders, binding over, and other non-custodial sanctions are examples.

Appraisal of Non-custodial Measures under the Nigerian Law

  1. Fine: This is provided for in sections 327, 422, 424, 434, and 437 of the Administration of Criminal Justice Act, 2015. A fine is a sum of money set by law that an offender must pay to the authority as punishment for an offense committed by him. Typically, there are statutory limits and specifics on the amount of a fine that an offender must pay.[4]
  2. Restitution and Compensation: While penalties are paid to the state (or the federal or local authorities prosecuting the offense), restitution or compensation is money paid by the defendant to the victim or the victim’s estate, or to a state restitution fund. The Administration of Criminal Justice Act, 2015 makes provision for restitution and compensation as an alternative to imprisonment in section 321(a) of the Act.
  3. Probation: Probation is an order made by the court before conviction in which a defendant is discharged or released from confinement on certain terms and under the supervision of the court. If a probationer violates a condition of probation, the court has the authority to revoke the probation and proceed to convict and sentence the probationer to custodial centre. Probation is provided for in Sections 453-459 of the Administration of Criminal Justice Act, 2015.
  4. Parole: Parole is a conditional release from incarceration in which a prisoner commits to follow certain rules (typically specified by a parole board) and submits to the monitoring of a parole officer. Any violation of those terms would result in the person being returned to prison. Section 468 of the ACJA, 2015 makes provision for this.
  5. Community Service: A community service order requires an offender to perform unpaid community service as restitution for his crime. It is a penalty delivered by a court in lieu of imprisonment. Failure to comply with the order, on the other hand, carries the danger of incarceration. The provisions of section 460 of ACJA, 2015 covers issues around the subject of community service.

Other forms of non-custodial sentences recognized by the law includes confinement to a rehabilitation centre and deportation (for foreign offenders). In sections 467, 439 and 440, ACJA, 2015 makes provisions for these.

The Role of the Judiciary

As the third arm of government, the court is seen as the common man’s last hope. This is because the court is the branch of government in charge of protecting citizens from the excesses of the other institutions, it interprets the law in order to keep the society stable. The court, like the legislature, according to realist jurisprudence is deemed to be involved in the formation of the law while interpreting it. This is because the extent of the judiciary’s interpretation of the law can influence how the law is executed and adhered to by citizens.[5]

In order to reap the full benefits of non-custodial measures and guarantee that society, offenders, and victims are all favorably impacted, it is critical for the court to recommend non-custodial measures more often, especially for minor offences and monitor the implementation process when they are dished out to criminals. These elegant provisions of the law may lie fallow if the court does not consider their use consistently and ensure that court and correctional officers are engaged to supervise the implementation process.


The goal of sentencing should be to maintain social harmony, reform the offender, and appease the victim, not to punish. Custodial sentences should not be the court’s first option, especially for minor offences. It is best practise to consider non-custodial measures when the facts of the case allow. Cases involving children should also be handled with caution, and the special considerations outlined in the Child Rights Act or Child Rights Laws, such as privacy, discretion, and extreme caution, must be exercised in order to protect the child’s best interests. As the world continues to make significant strides toward reforming criminal justice administration, it is prudent that the Nigerian court system follow suit and play a role in implementing the provisions of the law.


[1] Nigerian Correctional Service, 2022.

[2] UN doc. ST/CSDHA/22, Commentary on the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), 1991

[3] United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), 1991

[4] See section 1 of the Discrimination Against Persons with Disabilities (Prohibition) Act, 2018

[5] Davies, E A. 1990. The Independence of the Judiciary in Nigeria: Problems and Prospects. African Study Monograph 10(3), February

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