THISDAYonline

As a legal practitioner in Lagos I can say without doubt that the most exciting thing that has happened to the practice of the legal profession in recent times is the introduction of the new Lagos State High Court Civil Procedure Rules 2004.

The new rules have spun a revolution. In the old system of rules the claimant through his counsel in a judicial equivalent of the poker game allows his opponent to see only the least visible part of the case and claim whilst pretending all the while that all his cards are on the table in the first place and all facing up. Unwary and unwise is the defending counsel who assumes that he has seen all the claimant's case up till almost the end of the case. This is in a situation where the grundnorm states that litigants and counsel must know the opposing parties case from inception and none must be caught by surprise. This grundnorm was observed more in the breach than in the compliance. The new rules of procedure shifted the goal post completely. Now you must disclose all your case before even the case can be filed or registered. The full case, including relevant documentation or evidence and witness statements must be filed along with the writ of summons. It is exciting to watch and observe how practitioners will comply and give life to the new rules as we begin the journey into a reformed civil law advocacy. The new rules no doubt will bring about a positive change within our Legal System. Congratulations therefore to all stakeholders in the implementation of the new rules. The Lagos State Attorney General, The Judiciary and members of the Lagos Bar are also to be congratulated for this forward step. It is my hope that the rest of the country will follow suit after a few years incorporating any new amendment that implementation will make necessary.

Having achieved this I would like to see a complimentary revolution in our Criminal Procedure System as well and in particular our Sentencing Procedure. This is the subject matter of this discussion. In Nigeria at the moment we operate a system of punishment, which is mainly and unduly punitive abandoning the reform programme, which is the kernel of a criminal judicial system. Other countries such as the United Kingdom, United States of America and Australia operate multiple criminal sentence schemes, which are far more beneficial to the societies as a whole for reasons to be given hereunder.

Justice should be seen as being two fold: punishment and the rehabilitation of the offender. If we accept this point of view we need to extend our own criminal sentencing procedures and introduce systems used in other countries such as suspended sentence, continuity sentence, probation and the parole system of punishment. I wish to ask the question: Is imprisonment the only form of punishment available to us? I submit that it is not. It should be possible in cases where minors or first time offenders are involved to adopt a Community Sentence. The word "Community" by its very nature suggests a group of people bound by common interests and concerns. Where therefore an accused can be made to make amends to his community by working physically for the improvement of the community this can only be seen as being beneficial to the community as a whole.

In Lagos State at the moment there is a strong focus on Environmental Health. Minor offenders could be conscripted to help with general cleaning of streets, gutters, drains, markets and other public structures. They could also participate in erecting community facilities such as town halls, public health clinics and support programmes in local government communal efforts to eradicate AIDS etc. This type of constructive contribution will hopefully make the offender feel part of the community and prevent him or her from committing further crimes. By keeping a young or first time offender out of prison we have the hope of not producing hardened or career type criminals. Another main advantage is that prison costs will be reduced as it costs money to keep prisoners within the prison system. We are all aware that our prisons are terribly congested. Adding to the prison population unnecessarily is of no benefit to anyone whereas a constructive decongestion is beneficial to prisoners and the judicial system as a whole.

As a follow up to Community Service one would suggest that the system of suspended sentence be also embraced for lesser crimes. This system has been used and tested successfully in a number of countries. In using this method there is first of all a trial followed by a sentence which is given in the usual manner but which is not ultimately served by the accused unless the accused breaks the condition handed down by the Judge. It is important to note that it is the punishment that is suspended and not the judgment or sentence. The court sets a fixed term and then suspends its service and the accused is expected to be of good behaviour and desist from re-offending.

A derivation of the suspended system, which is applicable mainly to young and underage offenders called juveniles, is the Probation System. This allows a young person convicted of a lesser offence to avoid imprisonment under a suspension of sentence. During this period the accused must be of good behaviour and he is under the supervision of a probation officer. Our prison system must therefore work hand in hand with a new department which must be set up to be made up of probation officers. A Probation officer supervises a person who has been placed on probation by a court in a criminal proceeding. The officer is required to report to the court the progress of the probationer and to surrender him if he violates the terms and conditions of his probation.

Finally once the accused has been sentenced we may now adopt a system of sentencing known as the Parole System. In this regard a rarole board needs to be set up to work in conjunction with the Courts, the Attorney Generals Office and the Prison System. In the parole system what happens is that a prisoner who has been of good behaviour and who has not committed a capital offence can be given an early release date thereby reprieving the balance of the sentence. The convict will then be placed under the custody of a parole officer for a certain number of years who will assist with the rehabilitation of the offender into the society and keep close watch over the offender within this period. The offender will have certain geographical social and other limitations placed on him during the probation period. There will also be reporting requirements placed on the offender with any violation during the Parole period resulting in revocation and re-imprisonment

If we embrace some or all of these alternative sentencing systems hand in hand with our current system we will be moving our criminal system and our custodial System in line with modern times with the added benefit of witnessing a less congested and more humane prison system in Nigeria.

I urge the Federal Attorney General of Nigeria to borrow a leaf from the ground breaking reform agenda of Lagos State and set up a Custodial Sentencing Reform Committee urgently to understudy these new initiatives and make recommendations to him which will be implemented all across Nigeria in due course. It is clear that there will be a need to make necessary amendments to the existing Criminal and Penal codes and the Criminal Procedure and Prison Acts in the light of the fact that the Prison and Custodial System is a federal prerogative under our Constitution. Let the journey begin immediately.

Akintoye writes from Lagos