Introduction
Probation as a kind of non-custodial sentence evolved from English courts in the 18th and 19th centuries, where judges exercised the discretion to grant judicial pardon to offenders by sparing them from incarceration and suspending the sentence in instances where the judge deemed there were no reasons for imprisonment.Footnote 1 This practice was embraced by the American colonies, where Judge Peter Oxenbridge Thatcher in Boston granted judicial leniency by releasing offenders from custody based on their own recognizance.Footnote 2 In 1841, John Augustus, a shoemaker in Boston, pioneered the concept of probation and volunteered to stand bail for as well as supervise an offender charged with drunkenness. During the period of supervision, the offender showed signs of reformation, which made Augustus the first probation officer in the world; he was subsequently known as the father of probation. Intrigued by the offender’s reform, Augustus championed probation for 18 years, supervising more than 2,000 offenders; he sent those suitable to school and provided them with lodging and employment.Footnote 3 He had an organized system and maintained an up-to-date record of cases he handled; this provided a basis for the modern probation system, which found its way into the legislation of many jurisdictions.
In Nigeria, probation was unknown before the arrival of the colonialists, as it was not part of the non-custodial disposition method in the traditional criminal justice system.Footnote 4 Non-custodial punishments recognized under the traditional system include flogging, whipping, execution, tying, lacerating, banishment, wounds, emasculation or castration, suspension, expulsion of membership, burning down the offender’s house, excommunication and selling the offender into slavery.Footnote 5 Probation found its way into Nigeria’s statute book in 1945 with the enactment of the Criminal Procedure Act (CPA), which provides probation for both juvenile and adult offenders in sections 413 and 435–40.Footnote 6 Following this Act, the various Nigerian states enacted their own laws upon their creation in 1967, but probation as a suspended sentence was not welcomed in the Nigerian judicial system, as noted by the Supreme Court in State v Hassan Audu.Footnote 7 Subsequent to the decision of the Supreme Court, the Administration of Criminal Justice Act (ACJA) 2015, the Administration of Criminal Justice Laws of States and other penal laws have reiterated probation as a non-custodial sentence available in Nigeria just as elsewhere.
This article evaluates the application of probation as a type of non-custodial measure in Nigeria and compares its application with Kenya. The next part clarifies concepts and discusses international and domestic legal frameworks for probation. Probation as a non-custodial sentence is then discussed, and its terms and conditions, benefits, probation officers’ duties, and the application of probation in Nigeria is noted. There follows an analysis of the application of probation in Nigeria and Kenya, noting its effectiveness in rehabilitating offenders in Kenya and gaps in the application of this measure in Nigeria, before a conclusion and recommendations in the final section.
Clarification of terms
Probation
Clarke defines probation as the suspension on certain conditions of a prison sentence imposed by a court on a convicted offender.Footnote 8 The offender, also known as the probationer, is under the supervision of a probation officer, who ensures that the offender complies with the conditions of probation during its term. Dickinson and Coleson define probation as a process of treatment prescribed by the court for persons convicted of offences against the law, during which the individual on probation lives in the community and regulates his / her own life under conditions imposed by the court (or other constituted authority) subject to supervision by a probation officer, with the understanding that if the probationer violates the conditions, s/he may then be imprisoned.Footnote 9 Black’s Law Dictionary defines probation as a court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending them to jail.Footnote 10 In this article, probation is defined as a type of non-custodial sentencing, whereby the court suspends the sentence of an offender and releases him / her on certain conditions to live in the community with or without the supervision of a probation officer.
Non-custodial sentencing
Black’s Law Dictionary defines non-custodial sentencing as a criminal sentence not requiring a prison term.Footnote 11 It also defines an alternative sentence as a sentence other than incarceration; examples include community service and victim restitution. Similarly, Mann defines non-custodial sentencing as sentences that do not include imprisonment but include discharge, fines and community orders.Footnote 12 It is used for less serious offences based on considerations such as the offender’s history and mitigating factors. Having considered these definitions, this article defines non-custodial measures as sentences other than imprisonment that are applicable at three stages of legal proceedings: pre-trial, the trial stage and post-trial. These alternative sentences are within the realm of rehabilitative justice, which focuses on the rehabilitation of offenders for the long-term benefit of both themselves and the community.
Legal frameworks
Probation as a non-custodial measure is backed by several international and domestic legal frameworks. In the international sphere, the United Nations Standard Minimum Rules for Non-Custodial Measures (known as the Tokyo Rules) provide a set of basic principles aimed at promoting the use of non-custodial measures.Footnote 13 They provide sanctions and safeguards to persons given non-custodial sentences and outline some key principles, which include the use of pre-trial detention as a means of last resort; the development of the use of non-custodial alternatives to imprisonment; consideration of factors such as the nature and gravity of the offence and the personal characteristics and background of the person who is charged or convicted of a crime in the selection of the appropriate non-custodial measure or sanction; and the need to train and adequately remunerate staff employed to supervise and implement non-custodial alternatives. Item (h) of Rule 8.2 of the Tokyo Rules provides for probation and judicial supervision as one of the ways by which sentencing authorities may dispose of cases.
The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (known as the Beijing Rules) discourage the institutionalization of juveniles.Footnote 14 They provide for probation, in Rule 18.1, as one of the disposition measures available to the competent authority when dealing with juveniles. The United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (known as the Bangkok Rules) provide 70 rules that apply to women prisoners and women serving non-custodial sentences, as well as to juvenile females.Footnote 15 Rule 46 requires prison authorities, in cooperation with probation and social welfare, local community groups and non-governmental organizations, to design and implement comprehensive pre- and post-release reintegration programmes that take into account the specific needs of women.
Probation is also codified in Nigerian domestic laws; the following laws explicitly provide for probation as a non-custodial measure in Nigeria. In line with international best practices, the ACJA 2015 shifted Nigeria’s administration of the criminal justice system from a punitive approach to a restorative one by taking cognizance of the needs of society, victims and vulnerable persons.Footnote 16 It provides for probation as one of the non-custodial sentencing options for minor offences and misdemeanours under sections 453–59. The Nigerian Correctional Services Act 2019 is divided into two parts; the whole of Part II deals with the Nigerian Non-Custodial Service and places the onus of administering non-custodial measures on that service, while its section 37(1)(b) recognizes probation.Footnote 17
Some states, such as Kwara State and Kaduna State, have a Probation of Offenders Law. At the national level, there is no similar law or bill at the time of writing this article, though an article by Yekini and Salisu reveals that in 2010, there was a bill before the National Assembly titled “An act to make provision for the probation of offenders and for other matters connected therein” (SB.429), sponsored by Senator Hosea Ehinlanwo.Footnote 18 As of 2024, all the 36 states of the federation have enacted Administration of Criminal Justice Laws (ACJLs) for their respective states.Footnote 19 These state ACJLs provide for probation which is similar to ACJA. However, there are peculiarities accommodated in certain states, in courts that can sentence probation, in the appointment of probation officers and in the duties of probation officers.
Probation as a non-custodial sentence
Flowing from the above-identified international and domestic legal frameworks, probation is recognized in both the international and domestic spheres as a non-custodial measure. Probation is applicable where the court is of the opinion that a criminal charge against a defendant has been established, however having regard to their character, antecedents, age, health or mental condition, the trivial nature of the offence or the extenuating circumstances under which the offence was committed, it is expedient for the court to release the defendant on probation.Footnote 20 By releasing the offender to probation, the court may conditionally discharge the defendant on his / her entering into a recognizance with or without sureties, to be of good behaviour and to appear at any time during a period not exceeding three years, as stated in the order.Footnote 21 The condition upon which the court makes the order requires that the defendant should be under the supervision of a probation officer (a person or persons of the same sex), who agrees to supervise the defendant for the specific period of time in the order.Footnote 22
Prior to the ACJA, though probation was contained in the Nigerian statute book, ie under the repealed CPA, which made provision for probation for both juvenile and adult offenders, in practice it was only available to juveniles.Footnote 23 As a result, there were several remand homes and approved schools across Nigeria where probation services were rendered.Footnote 24
Terms and conditions of probation
Conditions of probation refer to definite requirements and obligations imposed on an offender sentenced to probation as an alternative to incarceration.Footnote 25 These conditions are meant to monitor and regulate the behaviour of probationers, ensure their compliance with the terms of their probation and address their individual needs and risks. Examples of such conditions include abstention from alcohol and drugs, residence, attending counselling classes, psychiatric therapy, community service, non-possession of firearms and other conditions the court stipulates based on the circumstance of the case, aimed at preventing a repetition of the same offence or the commission of other offences.Footnote 26 Moreover, the court may direct that the offender attend a special programme or seek help for alcohol, drug or mental health problems as a condition of the probation order. The offender might also be required to live at a probation hostel where the judge sees the need for more supervision. It is important to state at this juncture that whatever conditions are specified by the court and attached to the probation must relate to the original crime and have a bearing on the crime, must relate to conduct which in itself is not criminal and must not prohibit the probationer’s conduct where it does not reasonably relate to future criminal conduct.Footnote 27
The ACJA requires the court to stipulate some conditions, such as abstention from intoxicating substances, residence and any other matter the court deems necessary, in the recognizance or bail condition of the defendant.Footnote 28 The court is also required to give the defendant notice in writing, stating in simple terms the conditions s/he is required to observe.Footnote 29 The court can also vary the condition for probation based on an application by the probation officer and the probationer’s failure to show cause why the variation should not be made. In such instances, the court is empowered to vary the terms of the recognizance by extending or reducing the duration, which shall not exceed three years from the date of the original order.Footnote 30 The court is permitted by the ACJA to alter the conditions of probation and insert additional conditions; it can also discharge the offender from the recognizance where the probation officer applies and the court is satisfied that the probationer’s conduct does not require further supervision.Footnote 31
It is important to note that where the offender fails to observe the conditions of his / her probation, the court may issue a warrant for his / her arrest or summon him / her or the sureties to appear before the court.Footnote 32 In instances where the offender is arrested and brought before a court other than the court that placed him / her on probation, the court that ordered the arrest can remand him / her and commit him / her to prison or custody, or grant him / her bail until the appearance before the appropriate court, which is at liberty to convict and sentence the offender for the original offence where it is satisfied that the offender failed to observe a condition of his / her recognizance.Footnote 33
Benefits of probation
Probation is advantageous and beneficial to society, the offender, their family, the victim and the government. The following are advantages of probation:
a) It protects society by placing non-dangerous offenders under close supervision while they undergo treatment and rehabilitation in the community.
b) It prevents first offenders and juveniles from turning into hardened criminals.
c) It reduces recidivism, overcrowding and the amount of money government spends on incarcerating offenders.
d) It affords first offenders a second chance in life and provides an opportunity for the reformation of penitent offenders.
e) It imparts skills to offenders and enables them to continue with economic activities.
f) It affords opportunity for offenders to make restitution to victims of crime and preserve justice.
g) It helps maintain the family bond by affording the probationer an opportunity to be with his / her family.
h) It reconciles and reintegrates offenders, victims and the community.
i) It empowers offenders by providing guidance and counselling, the acquisition and transfer of skills and vocational training, financial support and / or working tools and equipment.
j) It reduces the load of prosecutors and lessens the clogging of courts.Footnote 34
Probation officers and their duties
A probation officer is a person who meets regularly with offenders to monitor and investigate their behaviours and ensure they comply with court orders. They ensure that offenders abide by the conditions of their probation and are safely rehabilitated back to their communities.Footnote 35 Probation officers play a crucial role within the criminal justice system, being at the forefront of the rehabilitation of offenders and making them decent citizens of society. They have several duties, which include meeting on a weekly or monthly basis with the probationer. In accordance with an assessment of the probationer’s risk and needs, the officer provides minimum, medium or maximum supervision and assistance.Footnote 36
Section 455(1) of the ACJA provides for an offender’s supervision by a probation officer as a condition for probation. The ACJA provides further for the duties of the probation officer as follows:
a) A duty to visit or receive reports on the probationer at such intervals as is specified in the probation order. This relates to instances where the probationer does not reside with the probation officer.
b) A duty to see that the probationer observes the conditions of his / her recognizance.
c) A duty to report the behaviour of the probationer to the court.
d) A duty to advise, assist and befriend the probationer and when necessary endeavour to find him / her suitable employment.Footnote 37
It is important to state at this juncture that a probation officer can be replaced and released of his / her duties; this occurs in cases of their death, when the court will substitute the deceased officer with another who consents to undertake the supervision of the probationer.Footnote 38
As it relates to the appointment of a probation officer, the ACJA empowers the Chief Judge of the Federal High Court or of the Federal Capital Territory, Abuja, or the President of the National Industrial Court to make regulations on the appointment of the probation officer. They are also empowered to designate persons of good character as probation officers, from which list a court within a district or division where the probation officer resides may appoint.Footnote 39
The application of probation in Nigeria
The application of this measure is yet to gain full acceptance by courts, considering that there are few pronouncements on it. In fact, prior to the ACJA, courts have ruled that suspended sentences are not part of Nigerian law and have no application whatsoever under the Nigerian criminal justice system. This was the courts’ position in Mrs Gloria Nya & Mr Louis Nya v Madam Eme Bassey Edem and in State v Audu; in the latter, the Supreme Court noted that of the various types of punishment provided for in section 68 of the Penal Code, there is none for a suspended sentence of imprisonment, although there is provision for imprisonment simpliciter.Footnote 40 However, some states, such as Kaduna State, have applied probation pursuant to their Probation of Offenders Law. For instance, in Ilanma v Suleiman, the appellant was charged, along with two other persons, with the offences of criminal conspiracy, criminal breach of trust and criminal misappropriation, contrary to sections 96, 311 and 308 of the Penal Code Law, and for which the Magistrate Court found them guilty.Footnote 41 The court bound the appellant and the co-accused on probation under section 25 of the Criminal Procedure Code to be of good behaviour for six months, in default of which they were to serve a prison term of three months. The court further asked the appellant to pay compensation to the respondent and another person as victims of the crime. Dissatisfied with the judgment, the respondent appealed to the High Court, which set aside the judgment of the Magistrate Court on the ground that the trial court erred in law by not imposing a term of imprisonment or fine. Aggrieved by the decision of the appellate High Court, the appellant appealed to the Court of Appeal. The Court of Appeal ruled on the power of the court to impose a suspended sentence or make a probationary order and noted that section 8(1) of the Probation of Offenders Law empowers a trial court, having convicted a person, to make a probationary order or suspended sentence, subject to the condition that the accused person commits no offence for a period not exceeding 12 months from the date the order was made. The Court of Appeal allowed the appeal and ruled that the trial court was empowered to make a probation order.
It is important to mention that other states, such as Kwara State, have a Probation of Offenders Law.Footnote 42 Other than Ilanma v Suleiman, there are no other reported cases on the application of this measure in Nigeria at the time of writing. This suggests that although probation is provided in Nigeria’s statute books, there is no judicial activism in the application of this measure. Research by Nwankwo on community service orders as an alternative to imprisonment revealed the attitude of magistrates in ordering non-custodial sentences such as community service or probation.Footnote 43 An interview with a judicial officer on the reason for the scanty application of probation by judicial officers revealed that magistrates are pessimistic in ordering community-based sentences, which includes probation, due to the fact that no probation officers were sent to magistrate courts. The judicial officer also noted that even where the court makes a probation order, lack of supervision remains a major problem. Also, probation officers may collude with offenders so that they can breach the terms of their probation. The interview revealed that courts still rely on the imposition of fines for trivial offences, and in the majority of cases resort to binding-over and conditional discharges in dealing with such offences.Footnote 44
Comparative analysis of the application of probation in Kenya and Nigeria
This section considers Kenya’s approach to applying probation. The rationale for choosing this country is premised on the fact that it is an African country that, similarly to Nigeria, borrowed its administration of criminal justice from a British colonial penal philosophy that emphasized retribution and the incapacitation of offenders with cruel and inhumane penalties. However, in line with international best practices, Kenya’s criminal justice system emphasizes the rehabilitation of offenders.
Probation in Kenya emanated from Britain and the Probation Ordinance passed in 1943, consequent upon which the probation service was established in 1946 as a response to curtail overcrowding in prisons and to the need to adopt non-custodial options.Footnote 45 Probation was also necessary following the establishment of youth corrective centres (ie borstal institutions and approved schools), which necessitated post-penal supervision and reintegration.Footnote 46 At the time, there were no trained probation officers, which necessitated the importation of staff from Britain to train locals as assistant probation officers. With time, probation became a profession, under the Kenya Probation and Aftercare Service (KPAS), in the State Department for Correctional Services under the Ministry of Interior and Coordination of National Government, and gained full acceptance in all counties and courts in Kenya.Footnote 47
Concerning the legal framework regulating probation in Kenya, the principal legal regime is the Probation of Offenders Act No 18 2018 (chapter 64, Law of Kenya), which is a byproduct of several amendments to the probation ordinances.Footnote 48 Other than this, other legal bases for probation orders in Kenya which empower the KPAS, thereby shaping its function, include the Community Service Orders Act No 10 1998, the Prison Act 2009 (chapter 90), the Children Act 2001 (chapter 586), the Borstal Institutions Act 1983 (chapter 92), the Sexual Offences Act No 6 2006, the Power of Mercy Act 2011, the Criminal Procedure Code 1962 (chapter 75), the Penal Code 2010 (chapter 63), the Victim Protection Act No 17 2014 and the Prohibition of Female Genital Mutilation Act No 32 2011.Footnote 49
Section 4 of the Probation of Offenders Act provides for the power of a subordinate or high court to make a probation order where a charge is proven against the offender by a subordinate court or where the offender has been convicted of an offence by the high court and the court is of the opinion that, having regard to the youth, character, antecedents, home surroundings, health or mental condition of the offender, the nature of the offence or any other extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation. This provision is similar to section 454 of the ACJA, which provides for conditional release of the defendant on probation. However, a slight difference in Kenya requires the court to explain to the offender in ordinary language, before the court places them on probation, the effect of the order and the liability that is incurable where the offender fails to comply with the order.Footnote 50 Another difference is that the Probation of Offenders Act precludes the court from making an order of probation unless the offender expresses his / her willingness to comply with its provisions.Footnote 51
Another point of similarity under both jurisdictions relates to the probationer’s failure to comply with the order, as both jurisdictions provide that the defaulting probationer can be summoned, arrested, fined or convicted with the original offence.Footnote 52 However, a slight noticeable difference is that under the Probation of Offenders Act, an offender who fails to comply with the terms of the probation order stands to forfeit the sum of any recognizance entered into by or on behalf of the offender.Footnote 53 Another point of similarity is that both legislations empower the court to order the offender to pay costs, damages for injury or compensation for loss to victims.Footnote 54 A notable distinction between both legislations is that in Kenya, the Probation of Offenders Act provides for a situation where a probationer commits a further offence while on probation: a probationer convicted by a magistrate court for another offence while on probation may be summoned, arrested, committed to custody or granted bail, convicted for the original offence in respect of which the probation order was made or sentenced for another offence.Footnote 55 The ACJA did not make provision for instances where the probationer commits another offence while on probation.
Another area of similarity under both provisions relates to variation or amendment of the probation order. Both legislations empower the court that placed a probationer on probation to vary, cancel or insert new provisions in the order upon an application by the probation officer.Footnote 56 A slight difference noticeable under both legislations relates to this power. While in Kenya an application for amendment can be brought by the probationer or the principal probation officer, under the ACJA an application can only be made by the probation officer.Footnote 57 Furthermore, both legislations preclude the court from reducing the period of probation or extending it beyond a period of three years from the date of the probation.Footnote 58 However, distinct from the ACJA, the Probation of Offenders Act provides for the variation of terms which require a probationer to reside in an institution, and for the variation of the order in instances where the probationer changes or is about to change his / her residence from the district named in the order to another district or area.Footnote 59
Furthermore, both legislations provide for the discharge of the probation order or recognizance.Footnote 60 However, while the application for discharge can only be brought by a probation officer under the ACJA, in Kenya the application can be brought by the probationer or the principal probation officer. Also in Kenya, where the probationer is subsequently sentenced for the offence in respect of which the probation order was made, the order shall cease to have effect.Footnote 61 Both legislations also provide for the appointment and selection of probation officers, although there are slight differences. While under the Probation of Offenders Act the probation officer is required to be selected by the principal probation officer,Footnote 62 the ACJA has no similar provision. Also, while the ACJA requires that the probation officer and the probationer should be of the same sex, the Kenya Probation of Offenders Act only requires a probation officer to be of the same sex when the probationer is a girl or a woman.Footnote 63
Dissimilarity between the two jurisdictions exists relating to the period under which an offender is required to be placed on probation. While the Probation of Offenders Act mandates an order to have effect within a period of time that is not less than six months and not more than three years from the date of the order, the ACJA only provides for a period which shall not exceed three years.Footnote 64 Another notable difference relates to the duties of the probation officer: while the ACJA provides for few duties of the probation officer,Footnote 65 the Probation of Offenders Rules, made under section 17, provide for a lot of duties, such as making preliminary inquiries into the antecedents, home surroundings and other circumstances of the accused person, supervision, home visitation and making inquiries as to the conduct, mode of life and employment of the probationer, keeping in close touch with the probationer, and meeting with him / her at least once a fortnight during the first six months of the probation order and later at such intervals as the officer deems necessary having regard to the conduct, mode of life and needs of the probationer.Footnote 66 Furthermore, where the probationer is a child attending school, the probation officer is required to make periodic inquiries of the school, attendance, conduct and progress, although they are precluded from interviewing the probationer on the school premises.Footnote 67 In addition, the probation officer has the duty to ensure that the probationer understands the terms and conditions of the order and must encourage, persuade and warn him / her to observe them.Footnote 68 Similar to the ACJA, the officer also has the duty to advise, assist and befriend the probationer and where necessary endeavour to help him / her find suitable employment.Footnote 69 Lastly, the officer is required to keep up-to-date records of the probationer, and where the probationer is under 18 years old, endeavour to help him / her secure an association with a suitable youth movement or other welfare organization.Footnote 70
The application of probation in Kenya
The Kenyan courts have applied probation in numerous cases, and we can consider some judicial pronouncements on it. In Republic v JMN the accused, who was 16 years of age and a first offender, was charged with murder but was convicted for manslaughter.Footnote 71 In considering the appropriate sentence, the court received the pre-sentence report of the probation officer, which recommended a non-custodial sentence, ie probation; it also considered the circumstance around the commission of the offence. The court welcomed the suggestion of probation, considering that it would benefit the accused in pursuing his education, but ordered that the offender pay compensation to the victim’s family to the sum of KES 95,000 within 30 days, in default of which he would serve probation for three years.
A similar decision was held in State v FOO, where a 15-year-old boy who was a first offender was convicted for the murder of an infant.Footnote 72 Considering the circumstances of the case and the remorsefulness of the accused, the court sentenced him to probation for three years under the supervision of a probation officer as well as his biological parents, who should take care of him and ensure that he went back to school. As part of the condition of probation, the offender was precluded from leaving his home for his paternal aunt’s home or to another location without the consent of the probation officer, considering that he had learnt bad habits such as drinking from his aunt, which had occasioned the commission of the offence. The court in John Mbugua v Republic also took into account when considering probation that the appellant was a remorseful first offender and a breadwinner who had children and a dependent ailing father who required medication and upkeep.Footnote 73 A similar decision was also held in GOO v Republic.Footnote 74
As explained above, where the probationer breaches the probation order, the probation officer can apply for the cancellation of probation. This was the situation in Jackline Agnes v Republic; here the accused was charged with the offence of neglecting a child contrary to section 23(1)(a) of the Children and Young Persons Act, consequent upon which the court convicted her and placed her on probation for three years.Footnote 75 However, she breached the probation order by failing to report to the probation officer, consequent upon which the officer applied for the cancellation of the probation, and she was sentenced to serve the balance of the period she had been placed on probation, ie 34 months, in jail. She appealed against the sentence on the ground that she had realized her mistake; considering that she had already served the bulk of her sentence in prison and was remorseful, the court allowed the appeal by setting aside the sentence and replacing it with the term already served. The court set her free with the hope that she look after the child she had abandoned.
In Jane Gatuya Mugweru v Republic, the appellant was charged before the Chief Magistrate Court for theft by servant, forgery, uttering false documents, stealing and handling stolen property.Footnote 76 Convicted for four out of the seven counts, she was sentenced to three months’ imprisonment. The appellant filed an appeal, and the court, in considering a non-custodial sentence based on the pre-sentencing report and her willingness to serve probation, placed her on probation for three years. During this period she was required to be under the supervision of a probation officer and adhere to some conditions, including to be of good behaviour, not commit any penal offence during the pendency of the sentence, and continue to pay the complainant institution on the schedule already agreed upon until she exhaust the payment. The court warned that if the appellant failed to abide by any term of probation, she would be arrested and committed to a term of imprisonment.
It is important to state here that the court will consider the history of an offender in determining whether or not to place him / her on probation; this was the court’s decision in Republic v Paul Murima Mbatia.Footnote 77 The accused was an elderly man who was charged with the murder of his brother but who entered a plea bargain for the charge of manslaughter. Upon conviction, the defence proposed a non-custodial sentence for the accused, considering that he was a first offender, an old man and had children who were his dependents. However, a pre-sentence report by the Probation and Aftercare Service expressed the view that the accused was unsuitable for probation, considering that he had a violent streak and had on previous occasions attacked his brother and two of his sisters-in-law due to his temper. The court considered the history of the accused, the views of the victim and the unwelcome environment in the family in determining that a non-custodial sentence was not the best option; it committed the accused to prison for 12 years, during which period rehabilitation programmes that addressed his anger would be available to him. The fact that the community and the family were unwilling to receive him was one of the factors that necessitated the court’s decision. Juxtaposing this decision with another, Republic v Johnstone Mutua John alias Kitai, reveals a different position.Footnote 78 Here the court was willing to release the accused, who was convicted for murder, to probation for three years because he was a first offender, reconciled with the deceased’s family and remorseful, and the community, family and even the church were willing to receive him back. Distinct from this, in Republic v Kosicha Kanchora Gura the court considered the accused’s old age, remorsefulness, sickness, eight dependent children who were minors and his contact with the victim’s family in sentencing him for five years for a charge of murder.Footnote 79 The court required that two of the five years be served in prison, after which the accused would be released on probation for the remaining three years.
The case of Republic v BC relates to the provision of the Probation of Offenders Act that provides instances where a probationer resides in an institution.Footnote 80 Here, the court placed the 17-year-old accused, charged with the murder of her first-born child, on probation for three years in a Siaya Girls Probation Hostel and under the supervision of a probation officer. Other conditions of the probation required her to undergo counselling and psychological support. A court has on several occasions also released offenders on probation as a result of their mental illness; this was the decision of the court in Republic v John Ndung’u Kamau.Footnote 81
From the above cases and more, it can be observed that the courts have applied probation not only in trivial cases but also in grievous ones like murder and manslaughter, where there are mitigating and surrounding circumstances that warrant the court placing the offender on probation. For instance, in LKF v Republic, the accused was charged with the offence of murder but pleaded guilty to manslaughter.Footnote 82 She was a single mother living with her three children and her deceased sister’s children, one of which was the victim. At the time of the incident, the accused was disciplining the child for misbehaviour with a chapati rolling pin, a sufaria and a hammer, inflicting head injuries which led to the victim’s demise. The accused was arrested and was in custody for a year, but the court considered her mitigation, pre-sentence report and good reports from the family, and sentenced her to three years’ probation with conditions, one of which included the need for the Probation Department to organize reconciliation between the families of the accused and the deceased.
Lastly, it is important to state that, although the probation officer’s pre-sentencing report is important in enabling the court to decide whether or not probation is the appropriate sentence for an offender, the court is however not bound by this report, especially in instances where there are conflicting facts and where the report does not consider the nature and the circumstances of the offence committed before recommending probation; this was the position of the court in Republic v Meeme.Footnote 83 Given the above, it will be safe to state that courts in Kenya adequately utilize probation orders in dealing both with petty offenders and with those who have committed offences such as murder, manslaughter and sexual offences, whether juveniles or adults.
The effectiveness of probation orders in the rehabilitation of offenders in Kenya
Research conducted by Muteti, Katungati and Soi on the delivery of community-based sentences and probation orders in Kenya in 2021 revealed that probation orders are very effective in rehabilitating offenders.Footnote 84 This research was conducted among magistrates, probation officers, probationers, members of the public and victims. Of the magistrates, 86.4 per cent considered a probation order effective, as did 94.9 per cent of probation officers, 89.7 per cent of probationers, 77 per cent of members of the public and 76.5 per cent of victims. Among these groups, there therefore exists a high level of acceptance.
Key factors responsible for the effectiveness of and compliance with probation order sentences include the level of supervision by probation officers, the fear of incarceration for the breach of probation orders, community support of probation orders, the use of local administration and communities in the supervision of probationers, the benefits of probation orders, and a vivid understanding and positive attitude of the probationer towards the sentence. Furthermore, the research revealed the Kenyan public’s favourable perception of probation orders. Factors shaping public attitudes towards probation orders are community sensitization to probation order sentences, the rehabilitation benefits of a probation order to the offender, the need to promote family unity or ties, the non-imprisonment of offenders and the benefits of the order.Footnote 85
While analysing probation service orders and their application in Kenya in 2022, Omboto explained that probation officers play a significant role in ensuring the effectiveness of the orders and the rehabilitation of the probationer.Footnote 86 For instance, he identified that probation officers have played an immense role in ensuring that perpetrators and victims of crime reconcile, and this aids in facilitating the integration of offenders in the community. Chrispinus Aben’s 2011 research on factors influencing the success of non-custodial sentences in Kenya, using Kilifi District in Kilifi County as a case study, revealed that financial commitment, a good supervision relationship between the probation officer and probationer, and community involvement in counselling, advising and providing a job and financial support to the probationer helped in rehabilitating the offenders and ensured their compliance with the order.Footnote 87
Having identified the factors for success, it is pertinent to state that challenges still exist, such as lack of support and / or negative attitudes by relevant stakeholders, non-compliance and reoffending by some probationers, a lack of resources for the Probation Department, difficulty among probationers in accessing probation officers, corruption among some stakeholders, probationers’ unfavourable life conditions, and failure to compensate victims for injury or loss caused by the offender.Footnote 88
Gaps in the application of probation in Nigeria
The ACJA and the other penal laws have provided a legal framework and an enabling ground for the robust application of probation in Nigeria. However, there are few judicial pronouncements on this order, especially compared to Kenya. This is as a result of some noticeable gaps. To start with, a poor attitude towards record-keeping and the tracing of absconding persons is a major challenge that has impeded the effective application of probation by courts in Nigeria.Footnote 89 As noted, magistrates and judges prefer ordering fines to probation and other non-custodial sentences in Nigeria, because of the apprehension that convicts will abscond. In addition, the scanty application of probation orders is attributable to courts’ pessimism about the level of supervision of an offender when released to probation. As such, the unavailability of probation officers to supervise offenders is a major gap in the application of probation in Nigeria.Footnote 90
Furthermore, there is a gap in the process of making a probation order by a Nigerian court, especially when compared to Kenya. In Kenya, before the court makes an order of probation, it considers a pre-sentence report made by a probation officer, which the court directs in order to conduct a social inquiry into the circumstances of the case and the accused.Footnote 91 The pre-sentence report recommends the suitability of probation, the period, the rehabilitation programme and any necessary measure to reduce the offender’s chance of reoffending. This pre-sentencing report is advantageous because it enables the court to know if probation is suitable and the likely period and conditions to impose that will rehabilitate the offender. It also enables the court to ensure that adequate measures are on the ground to supervise the offender. A careful perusal of the ACJA on probation does not reflect a similar position in Nigeria; it is a gap which impedes the application of probation in the country.
Also, other than supervision, as identified in the case of Kenya, finance is one of the reasons for successful supervision of probation. A lack of political will on the part of the government and of commitment of resources to train probation officers and equip them with what they need to enhance their mobility in aiding their supervisory role is a recognized gap. Corruption is another factor that has impeded judicial activism in the area of probation, considering that courts have expressed scepticism, believing that when they order probation, probation officers may collude with offenders so that they can breach the terms of their probation.Footnote 92
As discussed, in Kenya probation orders have even been made in cases of serious offences like manslaughter. This may be difficult in Nigeria considering its laws and judicial precedents that remove the judge’s discretion as it relates to mandatory sentences. This serves as an obstacle to judicial activism in Nigeria. For instance, in Abidemi v FGN, the Court of Appeal expressed the view that the sentence imposed by the court must be in accordance with that prescribed for the offence; nor can it impose a sentence which the statute creating the offence has not provided for.Footnote 93 In the cases of Ekpo v State, SLAP v Attorney General of the Federation and Asakitikpi v State, the court reiterated that sentences prescribed by statutes can be mandatory, maximum or minimum and / or a fine.Footnote 94 Where the sentence prescribed for a particular offence is a mandatory one, no court can give a lesser sentence, and an appeal against a sentence in such a case is a waste of time; so also is an allocutus. Moreover, in Egunjobi v FRN and State v John, the court identified that where a statute prescribed a minimum or maximum penalty for an offence, the discretion of the court is limited, as it cannot impose higher than the maximum or lower than the minimum.Footnote 95 From the above cases, and even from the provision of section 5(1) of the Kwara State Probation of Offenders Law, which excludes offences whose sentences are “fixed by law” from probation, it will be impracticable for courts to apply probation for serious offences in Nigeria.Footnote 96 While this is an impediment to judicial activism, it can, however, be queried why there is no judicial activism in the application of probation orders to trivial and simple offences.
Finally, other than in cases dealing with juvenile offenders, judges and magistrates are sceptical of probation. As such, despite the availability of laws on probation orders, Nigerian courts seem to prefer the imposition of imprisonment and fines, and only use measures such as probation when handling juvenile offenders or offences that requires binding-over and conditional discharge.Footnote 97 This is saddening considering that there are enabling grounds for robust judicial activism in applying probation. Despite the discretionary powers given to magistrates and judges through legal frameworks to apply probation, officials are swayed by the ideology of retribution and have emphasized deterrence rather than the idea of rehabilitation or reformation presented by probation as a non-custodial measure. This in fact was the position of the Supreme Court in Yakubu v FRN, where the Court emphasized deterrence as a major factor in sentencing.Footnote 98
Conclusion and recommendations
A probation order as a non-custodial sentence has been recognized in the international and domestic spheres for its effective and beneficial role in the administration of criminal justice. This article has extensively discussed the concept of the order, highlighted its international and domestic legal frameworks and considered its benefits. It has also discussed terms and conditions and the application of the orders in Nigeria, and has observed that there are rarely any judicial applications of probation, especially when compared with Kenya, where success factors such as good supervision, finance and a high level of community acceptance have aided in the robust application of probation orders.
After considering gaps in the application of probation in Nigeria, this article recommends the following: firstly, for probation to function effectively and gain popularity in our judicial system, there is a need for government to provide the resources necessary to maintain a practicable system or a department such as the Probation and Aftercare Service in Kenya, a department under the Correctional Service, which supervises court orders and penal sanctions, rehabilitates, reintegrates and resettles offenders and ex-offenders and ensures the supervision of probationers.Footnote 99 If Nigeria has a similar department that is well funded and staffed and operated by well-trained and professional officers, it will allay the fear of courts and boost their confidence in sentencing offenders to probation.
Secondly, there is a need for the courts and correctional service to build an efficient record-keeping system that aids in tracing the location of an absconding offender’s place of abode when s/he defaults in carrying out a probation order, other than the requirement of sureties as provided by the ACJA. Thirdly, borrowing from Kenya’s Probation of Offenders Act, there is a need to revisit the ACJA to provide for a requirement of a pre-sentencing report before the court places an offender on probation. This is because when a pre-sentencing report that has enquired into the circumstances of the case and the offender is presented to the court, it will enable the court to ascertain if there are adequate arrangements made for the supervision of an offender and whether they will be able to carry out the order and benefit from probation.
Lastly, there is a need for more judicial activism in the application of probation for offenders convicted of non-violent and minor crimes. Judges and magistrates, alongside competent defence and prosecuting counsels and probation officers, should constitute powerful tools in making probation sanctions viable, better known and fit not only for juvenile offenders but for adults, considering that it has immense benefit to the offender, the victim and the community at large. This article has revealed an avalanche of legal frameworks that provide for probation orders, and there is a need to adequately enforce them.
Competing interests
None
